A POLITICAL HISTORY
OF THE
STATE OF NEW YORK

BY
DeALVA STANWOOD ALEXANDER, A.M., LL.D.
Member of Congress, Formerly United States Attorney
for the Northern District of New York

NEW YORK
HENRY HOLT AND COMPANY
1906 and 1909

CONTENTS

VOL. I

VOL. II

VOL. III

[INDEX]

Transcriber's Notes

Inconsistent spellings and hyphenations such as "re-election" and "reëlection" have been conformed, and obvious typographical errors have been corrected.

The original contains an index in Volume II covering Volumes I and II. Volume III, which was published later, contains an index covering all three volumes. Therefore, the Volume II index has been omitted.

The original of Volume III refers to both "Appleton's Encyclopedia" and "Appleton's Cyclopædia." The correct title, as used in Volumes I and II, is "Appleton's Cyclopædia" and has been corrected in Volume III.

A POLITICAL HISTORY
OF THE
STATE OF NEW YORK

BY
DeALVA STANWOOD ALEXANDER, A.M.
Member of Congress, Formerly United States Attorney
for the Northern District of New York

Vol. I
1774-1832

[Volume I Contents]

NEW YORK
HENRY HOLT AND COMPANY
1906

Copyright, 1906
By
HENRY HOLT AND COMPANY

PREFACE

The preparation of this work was suggested to the author by the difficulty he experienced in obtaining an accurate knowledge of the movements of political parties and their leaders in the Empire State. "After living a dozen years in New York," wrote Oliver Wolcott, who had been one of Washington's Cabinet, and was afterwards governor of Connecticut, "I don't pretend to comprehend their politics. It is a labyrinth of wheels within wheels, and it is understood only by the managers." Wolcott referred to the early decades of the last century, when Clintonian and Bucktail, gradually absorbing the Federalists, severed the old Republican party into warring factions. In later years, Daniel S. Dickinson spoke of "the tangled web of New York politics"; and Horace Greeley complained of "the zigzag, wavering lines and uncouth political designations which puzzled and wearied readers" from 1840 to 1860, when Democrats divided into Conservatives and Radicals, Hunkers and Barnburners, and Hards and Softs; and when Whigs were known as Conscience and Cotton, and Woollies and Silver Grays. More recently James Parton, in his Life of Andrew Jackson, speaks of "that most unfathomable of subjects, the politics of the State of New York."

There is no attempt in this history to catalogue the prominent public men of New York State. Such a list would itself fill a volume. It has only been possible, in the limited space given to over a century, to linger here and there in the company of the famous figures who rose conspicuously above their fellow men and asserted themselves masterfully in influencing public thought and action. Indeed, the history of a State or nation is largely the history of a few leading men, and it is of such men only, with some of their more prominent contemporaries, that the author has attempted to write.

It would be hard to find in any Commonwealth of the Union a more interesting or picturesque leadership than is presented in the political history of the Empire State. Rarely more than two controlling spirits appear at a time, and as these pass into apogee younger men of approved capacity are ready to take their places. None had a meteoric rise, but in his day each became an absolute party boss; for the Constitution of 1777, by creating the Council of Appointment, opened wide the door to bossism. The abolition of the Council in 1821 doubtless made individual control more difficult, but the system left its methods so deeply impressed upon party management that what before was done under the sanction of law, ever after continued under the cover of custom.

After the Revolution, George Clinton and Alexander Hamilton led the opposing political forces, and while Aaron Burr was forging to the front, the great genius of DeWitt Clinton, the nephew of George Clinton, began asserting itself. The defeat of Burr for governor, and the death of Hamilton would have left DeWitt Clinton in complete control, had he found a strong man for governor whom he could use. In 1812 Martin Van Buren discovered superiority as a manager, and for nearly two decades, until the death of the distinguished canal builder, his great ability was taxed to its uttermost in the memorable contests between Bucktails and Clintonians. Thurlow Weed succeeded DeWitt Clinton in marshalling the forces opposed to Van Buren, whose mantle gradually fell upon Horatio Seymour. Clustered about each of these leaders, save DeWitt Clinton, was a coterie of distinguished men whose power of intellect has made their names familiar in American history. If DeWitt Clinton was without their aid, it was because strong men in high position rebelled against becoming errand boys to do his bidding. But the builder of the Erie canal needed no lieutenants, since his great achievement, aiding the farmer and enriching the merchant, overcame the power of Van Buren, the popularity of Tompkins, and the phenomenal ability of the Albany Regency.

In treating the period from 1800 to 1830, the term "Democrat" is purposely avoided, since all anti-federalist factions in New York claimed to be "Republican." The Clay electors, in the campaign of 1824, adopted the title "Democrat Ticket," but in 1828, and for several years after the formation of the Whig party in 1834, the followers of Jackson, repudiating the title of Democrats, called themselves Republicans.

For aid in supplying material for character and personal sketches, the author is indebted to many "old citizens" whom he met during the years he held the office of United States Attorney for the Northern District of New York, when that district included the entire State north and west of Albany. He takes this occasion, also, to express his deep obligation to the faithful and courteous officials of the Library of Congress, who, during the years he has been a member of Congress, assisted him in searching for letters and other unindexed bits of New York history which might throw some light upon subjects under investigation.

The author hopes to complete the work in an additional volume, bringing it down to the year 1896.

D.S.A.

Buffalo, N.Y., March, 1906.

CONTENTS

VOL. I

[INDEX]

A POLITICAL HISTORY OF THE
STATE OF NEW YORK

CHAPTER I
A COLONY BECOMES A STATE

On the 16th of May, 1776, the second Continental Congress, preparing the way for the Declaration of Independence, recommended that those Colonies which were without a suitable form of government, should, to meet the demands of war, adopt some sufficient organisation. The patriot government of New York had not been wholly satisfactory. It never lacked in the spirit of resistance to England's misrule, but it had failed to justify the confident prophecies of those who had been instrumental in its formation.

For nearly a year New York City saw with wonder the spectacle of a few fearless radicals, organised into a vigilance committee of fifty, closing the doors of a custom-house, guarding the gates of an arsenal, embargoing vessels ladened with supplies for British troops, and removing cannon from the Battery, while an English fleet, well officered and manned, rode idly at anchor in New York harbour. Inspiring as the spectacle was, however, it did not appreciably help matters. On the contrary, it created so much friction among the people that the conservative business men—resenting involuntary taxation, yet wanting, if possible with honour, reconciliation and peace with the mother country—organised, in May, 1774, a body of their own known as the Committee of Fifty-one, which thought the time had come to interrupt the assumed leadership of the Committee of Fifty. This usurpation by one committee of powers that had been exercised by another, caused the liveliest indignation.

The trouble between England and America had grown out of the need for a continental revenue and the lack of a continental government with taxing power—a weakness experienced throughout the Revolution and under the Confederation. In the absence of such a government, Parliament undertook to supply the place of such a power; but the Americans blocked the way by an appeal to the principle that had been asserted by Simon de Montford's Parliament in 1265 and admitted by Edward I. in 1301—"No taxation without representation." So the Stamp Act of 1765 was repealed. The necessity for a continental revenue, nevertheless, remained, and in the effort to adopt some expedient, like the duty on tea, Crown and Colonies became involved in bitter disputes. The idea of independence, however, had, in May, 1774, scarcely entered the mind of the wildest New York radical. In their instructions to delegates to the first Continental Congress, convened in September, 1774, the Colonies made no mention of it. Even in May, 1775, the Sons of Liberty in Philadelphia cautioned John Adams not to use the word, since "it is as unpopular in all the Middle States as the Stamp Act itself."[1] Washington wrote from the Congress that independence was then not "desired by any thinking man in America."[2]

The differences, therefore, between the Committees of Fifty and Fifty-one were merely political. One favoured agitation for the purpose of arousing resistance to the King's summary methods—the other preferred a more orderly but not less forceful way of making known their opposition. Members of both committees were patriots in the highest and best sense, yet each faction fancied itself the only patriotic, public spirited and independent party.

It was during these months of discord that Alexander Hamilton, then a lad of seventeen, astonished his listeners at the historic meeting "in the Fields,"[3] with the cogency of his arguments and the wonderful flights of an unpremeditated eloquence while denouncing the act of Parliament which closed the port of Boston. Hamilton had already been a year in America attending the Elizabethtown grammar school, conducted under the patronage of William Livingston, soon to become the famous war governor of New Jersey. This experience quickened the young man's insight into the vexed relations between the Colonies and the Crown, and shattered his English predilections in favour of the little minds that Burke thought so ill-suited to a great empire. A visit to Boston shortly after the "tea party" seems also to have had the effect of crowding his mind with thoughts, deeply and significantly freighted with the sentiment of liberty, which were soon to make memorable the occasion of their first utterance.

The remarkable parallel between Hamilton and the younger Pitt begins in this year, while both are in the schoolroom. Hamilton "in the Fields" recalls Pitt at the bar of the House of Lords, amazing his companions with the ripe intelligence and rare sagacity with which he followed the debate, and the readiness with which he skilfully formulated answers to the stately arguments of the wigged and powdered nobles. Pitt, under the tuition of his distinguished father, was fitted for the House of Commons as boys are fitted for college at Exeter and Andover, and he entered Parliament before becoming of age. Hamilton's preparation had been different. At twelve years of age he was a clerk in a counting house on the island of Nevis in the West Indies; at sixteen he entered a grammar school in New Jersey; at seventeen he became a sophomore at King's College. It is then that he spoke "in the Fields"—not as a sophomore, not as a precocious youth with unripe thoughts, not as a boy orator—but as a man speaking with the wisdom of genius.

After the meeting "in the Fields" patriotism proved stronger than prejudice, and in November, 1774, the Committee of Fifty-one gave place to a Committee of Sixty, charged with carrying out recommendations of the Continental Congress. Soon after a Committee of One Hundred, composed of members of the Committees of Fifty and Fifty-one, assumed the functions of a municipal government. Finally, in May, 1775, representatives were chosen from the several counties to organise a Provincial Congress to take the place of the long established legislature of the Colony, which had become so steeped in toryism that it refused to recognise the action of any body of men who resented the tyranny of Parliament. Thus, in the brief space of eighteen months, the government of the Crown had been turned into a government of the people.

For several months, however, the patriots of New York had desired a more complete state government. All admitted that the revolutionary committees were essentially local and temporary. Even the hottest Son of Liberty came to fear the licentiousness of the people on the one hand, and the danger from the army on the other. Nevertheless, the Provincial Congress, whose members had been trained by harsh experience to be stubborn in defence and sturdy in defiance, declined to assume the responsibility of forming such a government as the Continental Congress recommended. That body had itself come into existence as a revolutionary legislature after the Provincial Assembly had refused either to approve the proceedings of the first Continental Congress, or to appoint delegates to the second; and, although it did not hesitate to usurp temporarily the functions of the Tory Assembly, to its great credit it believed the right of creating and framing a new civil government belonged to the people; and, accordingly, on May 24, 1776, it recommended the election of new representatives who should be specially authorised to form a government for New York.

The members of this new body were conspicuous characters in New York's history for the next third of a century. Among them were John Jay, George Clinton, James Duane, Philip Livingston, Philip Schuyler, and Robert R. Livingston. The same men appeared in the Committee of Safety, at the birth of the state government, as witnesses of the helplessness of the Confederation, and as backers or backbiters of the Federal Constitution. Among those associated with them were James Clinton, Ezra L'Hommedieu, Marinus Willett, John Morin Scott, Alexander McDougall, John Sloss Hobart, the Yateses, Abraham, Richard and Robert; the Van Cortlandts, James, John and Philip; the Morrises, Richard, Lewis and Gouverneur, and all the Livingstons. Only two illustrious names are absent from these early patriotic lists, but already Alexander Hamilton had won the heart of the people by his wonderful eloquence and logic, and Aaron Burr, a comely lad of nineteen, slender and graceful as a girl, with the features of his beautiful mother and the refinement of his distinguished grandfather, had thrown away his books to join Arnold on his way to Quebec. These men passed into history in companies, but each left behind his own trail of light. Where danger called, or civic duties demanded prudence and profound sagacity, this band of patriots appeared in council and in the camp, ready to answer to the roll-call of their country, and by voice and vote set the pace which achieved independence.

The new Provincial Congress met at the courthouse in White Plains on July 9, 1776, and, as evidence of the change from the old institutions to the new, it adopted the name of the "Convention of the Representatives of the State of New York." As further evidence of the new order of things it declared that New York began its existence as a State on April 20, 1775. It also adopted as the law of the State such parts of the common and statute law of England as were in force in the Colony of New York on April 19, 1775.

By this time the British forces had become so active in the vicinity of New York that the convention thought it advisable to postpone the novel and romantic work of state-making until the threatened danger had passed; but, before its hasty adjournment, by requesting officers of justice to issue all processes and pleadings under the authority and in the name of the State of New York, it served notice that King and Parliament were no longer recognised as the source of political authority. This appears to have been the first official mention of the new title of the future government.[4] When the convention reassembled on the first day of the following August it appointed John Jay chairman of a committee to report the draft of a state constitution.

Jay was then thirty-one years old, a cautious, clever lawyer whose abilities were to make a great impression upon the history of his country. He belonged to a family of Huguenot merchants. The Jays lived at La Rochelle until the revocation of the Edict of Nantes drove the great-grandfather to England, where the family continued until 1686, when Augustus, the grandfather, settled in New York. It was not a family of aristocrats; but for more than a century the Jays had ranked among the gentry of New York City, intermarrying with the Bayards, the Stuyvesants, the Van Cortlandts and the Philipses. To these historic families John Jay added another, taking for his wife Sarah Livingston, the sister of Brockholst, who later adorned the Supreme Court of the United States, and the daughter of William, New Jersey's coming war governor, already famous as a writer of poems and essays.

Jay's public career had begun two years before in connection with the revolutionary Committee of Fifty-one. He did not accept office because he loved it. He went into politics as he might have travelled on a stage-coach at the invitation of a few congenial friends, for their sake, not for his own. When he took up the work of organisation, therefore, it was with no wish to become a leader; he simply desired to guide the spirit of resistance along orderly and forceful lines. But soon he held the reins and had his foot on the brake. In drafting a reply to resolutions from a Boston town meeting, he suggested a Congress of all the Colonies, to which should be referred the disturbing question of non-importation. This letter was not only the first serious suggestion of a general Congress, placing its author intellectually at the head of the Revolutionary leaders; but the plan—which meant broader organisation, more carefully concerted measures, an enlistment of all the conservative elements, and one official head for thirteen distinct and widely separated colonies—gradually found favour, and resulted in sending the young writer as a delegate to the first Continental Congress.

It was in this Congress that Jay won the right to become a constitution-maker. Of all the men of that busy and brilliant age, no one advanced more steadily in the general knowledge and favour. When he wrote the address to the people of Canada, his great ability was recognised at once; and after he composed the appeal to Ireland and to Jamaica, the famous circular letter to the Colonies, and the patriotic address to the people of his own State, his wisdom was more frequently drawn upon and more widely appreciated than ever; but he may be said to have leaped into national fame when he drafted the address to the people of Great Britain. While still ignorant of its authorship, Jefferson declared it "a production of the finest pen in America."

CHAPTER II
MAKING A STATE CONSTITUTION
1777

It was early spring in 1777 before John Jay, withdrawing to the country, began the work of drafting a constitution. His retirement recalls Cowper's sigh for

"... a lodge in some vast wilderness,
Some boundless contiguity of shade,
Where rumours of oppression and deceit,
Of unsuccessful and successful war,
Might never reach me more."

Too much and too little credit has been given Jay for his part in the work. One writer says he "entered an almost unexplored field." On the other hand, John Adams wrote Jefferson that Jay's "model and foundation" was his own letter to George Wythe of Virginia. Neither is true. The field was not unexplored, nor did John Adams' letter contain a suggestion of anything not already in existence, except the election of a Council of Appointment, with whose consent the governor should appoint all officers. His plan of letting the people elect a governor came later. "We have a government to form, you know," wrote Jay, "and God knows what it will resemble. Our politicians, like some guests at a feast, are perplexed and undetermined which dish to prefer;"[5] but Jay evidently preferred the old home dishes, and it is interesting to note how easily he adapted the laws and customs of the provincial government to the needs of an independent State.

The legislative branch of the government was vested in two separate and distinct bodies, called the Assembly and the Senate. The first consisted of seventy members to be elected each year; the second of twenty-four members, one-fourth to be elected every four years. Members of the Assembly were proportioned to the fourteen counties according to the number of qualified voters. For the election of senators, the State was divided into "four great districts," the eastern being allowed three members, the southern nine, the middle six and the western six. To each house was given the powers and privileges of the Provincial Assembly of the Colony of New York. In creating this Legislature, Jay introduced no new feature. The old Assembly suggested the lower house, and the former Council or upper house of the Province, which exercised legislative powers, made a model for the Senate.[6] In their functions and operations the two bodies were indistinguishable.[7]

The qualifications of those who might vote for members of the Legislature greatly restricted suffrage. Theoretically every patriot believed in the liberties of the people, and the first article of the Constitution declared that "no authority shall, on any pretence whatever, be exercised over the people of the State, but such as shall be derived from and granted by them." This high-sounding exordium promised the rights of popular sovereignty; but in practice the makers of the Constitution, fearing the passions of the multitude as much as the tyranny of kings, deemed it wise to keep power in the hands of a few. A male citizen of full age, possessing a freehold of the value of twenty pounds, or renting a tenement of the yearly value of forty shillings, could vote for an assemblyman, and one possessing a freehold of the value of one hundred pounds, free from all debts, could vote for a senator.

But even these drastic conditions did not satisfy the draftsman of the Constitution. The legislators themselves, although thus carefully selected, might prove inefficient, and so, lest "laws inconsistent with the spirit of this Constitution, or with the public good, may be hastily or unadvisedly passed," a Council of Revision was created, composed of the governor, chancellor, and the three judges of the Supreme Court, or any two of them acting with the governor, who "shall revise all bills about to be passed into laws by the Legislature." If the Council failed to act within ten days after having possession of the bill, or if two-thirds of each house approved it after the Council disapproved it, the bill became law. This Council seems to have been suggested by the veto power possessed by the King's Privy Council.

The supreme executive power and authority of the State were vested in a governor, who must be a freeholder and chosen by the ballots of freeholders possessed of one hundred pounds above all debts. His term of office was three years, and his powers similar to those of preceding Crown governors. He was commander-in-chief of the army, and admiral of the navy. He had power to convene the Legislature in extraordinary session; to prorogue it not to exceed sixty days in any one year; and to grant pardons and reprieves to persons convicted of crimes other than treason and murder, in which cases he might suspend sentence until the Legislature acted. In accordance with the custom of his predecessors, he was also expected to deliver a message to the Legislature whenever it convened. To aid him in his duties, the Constitution provided for the election of a lieutenant-governor, who was made the presiding officer of the Senate.

The proposition that no authority should be exercised over the people except such as came from the people necessarily opened the door to an election of the governor by the people; but how to restrict his power seems to have taxed Jay's ingenuity. He had reduced the number of voters to its lowest terms, and put a curb on the Legislature, as well as the governor, by the creation of the Council of Revision; but how to curtail the chief executive's power in making appointments, presented a problem which gave Jay himself, when governor, good reason to regret the manner of its solution.

The only governors with whom Jay had had any experience were British governors, and the story of their rule was a story of astonishing mistakes and vexing stupidities. To go no farther back than Lord Cornbury, the dissolute cousin of Queen Anne, not one in the long list, covering nearly a century, exhibited gifts fitting him for the government of a spirited and intelligent people, or made the slightest impression for good either for the Crown or the Colony. Their disposition was to be despotic, and to prevent a repetition of such arbitrary conduct, Jay sought to restrict the governor's power in making appointments to civil office.

The new Constitution provided for the appointment of sheriffs, mayors of cities, district attorneys, coroners, county treasurers, and all other officers in the State save governor, lieutenant-governor, state treasurer and town officers. Some members of the convention wished the governor to make these appointments; others wanted his power limited by the Legislature's right to confirm. Jay saw objections to both methods. The first would give the governor too much power; the latter would transfer too much to the Legislature. To reconcile these differences, therefore, he proposed "Article XXIII. That all officers, other than those who, by this Constitution, are directed to be otherwise appointed, shall be appointed in the manner following, to wit: The Assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a Council for the appointment of the said officers, of which the governor shall be president and have a casting vote, but no other vote; and with the advice and consent of the said Council shall appoint all of the said officers."[8]

This provision was simply, as the sequel showed, a bungling compromise. Jay intended that the governor should nominate and the Council confirm, and in the event of a tie the governor should have the casting vote. But in practice it subordinated the governor to the Council whenever a majority of the Assembly was politically opposed to him, and the annual election of the Council greatly increased the chances of such opposition. When, finally, the Council of Appointment set up the claim that the right to nominate was vested concurrently in the governor and in each of the four senators, it practically stripped the chief executive of power.

The anomaly of the Constitution was the absence of provision for the judicature, the third co-ordinate branch of the government. One court was created for the trial of impeachments and the correction of errors, but the great courts of original jurisdiction, the Supreme Court and the Court of Chancery, as well as the probate court, the county court, and the court of admiralty, were not mentioned except incidentally in sections limiting the ages of the judges, the offices each might hold, and the appointment of clerks. Instead of recreating these courts, the Constitution simply recognised them as existing. The new court established, known as the Court of Errors and Impeachment, consisted of the president of the Senate, the senators, the chancellor, and the three judges of the Supreme Court, or a major part of them. The conception of vesting supreme appellate jurisdiction in the upper legislative house was derived from the former practice of appeals to the Council of the Province,[9] which possessed judicial as well as legislative power. The Constitution further followed the practice of the old Council by providing that judges could not vote on appeals from their own judgments, although they might deliver arguments in support of the same—a custom which had obtained in New York from the earliest times.[10]

In like manner provincial laws, grants of lands and charters, legal customs, and popular rights, most of which had been in existence for a century, were carried over. The Constitution simply provided, in a general way, for the continuance of such parts of the common law of England, the statute law of England and Great Britain, and the acts of the legislature of the Colony of New York, as did not yield obedience to the government exercised by Great Britain, or establish any particular denomination of Christians, or their priests or ministers, who were debarred from holding any civil or military office under the new State; but acts of attainder for crimes committed after the close of the war were abrogated, with the declaration that such acts should not work a corruption of the blood.

The draft of the Constitution in Jay's handwriting was reported to the convention on March 12, 1777, and on the following day the first section was accepted. Then the debate began. Sixty-six members constituted the convention, a majority of whom, led by John Morin Scott, believed in the reign of the people. The spirit that nerved a handful of men to embargo vessels and seize munitions of war covered by British guns never wanted courage, and this historic band now prepared to resist a conservatism that seemed disposed simply to change the name of their masters. Jay understood this feeling. "It is probable that the convention was ultra-democratic," says William Jay, in the biography of his father, "for I have heard him observe that another turn of the winch would have cracked the cord."[11]

Jay was not without supporters. Conservatives like the Livingstons, the Morrises, and the Yateses never acted with the recklessness of despair. They had well-formed notions of a popular government, and their replies to proposed changes broke the force of the opposition. But Jay, relying more upon his own policy, prudently omitted several provisions that seemed to him important, and when discussion developed their need, he shrewdly introduced them as amendments. Upon one question, however, a prolonged and spirited debate occurred. This centred upon the freedom of conscience. The Dutch of New Netherland, almost alone among the Colonies, had never indulged in fanaticism, and the Constitution, breathing the spirit of their toleration, declared that "the free exercise and enjoyment of religious profession and worship without diminution or preference shall forever hereafter be allowed within the State to all mankind." Jay did not dissent from this sentiment; but, as a descendant of the persecuted Huguenots, he wished to except Roman Catholics until they should deny the Pope's authority to absolve citizens from their allegiance and to grant spiritual absolution, and he forcefully insisted upon and secured the restriction that "the liberty of conscience hereby granted shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the safety of the State." The question of the naturalisation of foreigners renewed the contention. Jay's Huguenot blood was still hot, and again he exacted the limitation that all persons, before naturalisation, shall "abjure and renounce all allegiance to all and every foreign king, prince, potentate, and state, in all matters ecclesiastical as well as civil."

Jay intended reporting other amendments—one requiring a similar renunciation on the part of all persons holding office, and one abolishing domestic slavery. But before the convention adjourned he was, unfortunately, summoned to the bedside of his dying mother. Otherwise, New York would probably have had the distinction of being first to set the example of freedom. "I should have been for a clause against the continuance of domestic slavery," he said, in a letter objecting to what occurred after his forced retirement.[12]

Although the Constitution was under consideration for more than a month, haste characterised the close of the convention's deliberations. As soon as Jay left, every one seemed eager to get away, and on Sunday, April 20, 1777, the Constitution was adopted as a whole practically as he left it, and a committee appointed to report a plan for establishing a government under it. Unlike the Constitution of Massachusetts, it was not submitted to the voters for ratification. The fact that the delegates themselves had been elected by the people seemed sufficient, and two days after its passage, the secretary of the convention, standing upon a barrel in front of the courthouse at Kingston, published it to the world by reading it aloud to those who happened to be present. As it became known to the country, it was cordially approved as the most excellent and liberal of the American constitutions. "It is approved even in New England," wrote Jay, "where few New York productions have credit."[13]

The absence of violent democratic innovations was the Constitution's remarkable feature. Although a product of the Revolution, framed to meet the necessities growing out of that great event, its general provisions were decidedly conservative. The right of suffrage was so restricted that as late as 1790 only 1303 of the 13,330 male residents of New York City possessed sufficient property to entitle them to vote for governor. Even the Court of Chancery remained undisturbed, notwithstanding royal governors had created it in opposition to the wishes of the popular assembly. But despite popular dissatisfaction, which evidenced itself in earnest prayers and ugly protests, the instrument, so rudely and hastily published on April 22, 1777, remained the supreme law of the State for forty-four years.

Before adjournment the convention, adopting the report of its committee for the organisation of a state government, appointed Robert R. Livingston, chancellor; John Jay, chief justice of the Supreme Court; Robert Yates, Jr., and John Sloss Hobart, justices of the Supreme Court, and Egbert Benson, attorney-general. To a Council of Safety, composed of fifteen delegates, with John Morin Scott, chairman, were confided all the powers of the State until superseded by a regularly elected governor.

CHAPTER III
GEORGE CLINTON ELECTED GOVERNOR
1777

After the constitutional convention adjourned in May, 1777, the Council of Safety immediately ordered the election of a governor, lieutenant-governor, and members of the Legislature. The selection of a governor by ballot interested the people. Although freeholders who could vote represented only a small part of the male population, patriots of every class rejoiced in the substitution of a neighbour for a lord across the sea. And all had a decided choice. Of those suggested as fittest as well as most experienced Philip Schuyler, John Morin Scott, John Jay and George Clinton were the favourites. Just then Schuyler was in the northern part of the province, watching Burgoyne and making provision to meet the invasion of the Mohawk Valley; George Clinton, in command on the Hudson, was equally watchful of the movements of Sir Henry Clinton, whose junction with Burgoyne meant the destruction of Forts Clinton and Montgomery at the lower entrance to the Highlands; while Scott and Jay, as members of the Council of Safety, were directing the government of the new State.

Schuyler's public career began in the Provincial Assembly of New York in 1768. He represented the people's interests with great boldness, and when the Assembly refused to thank the delegates of the first Continental Congress, or to appoint others to a second Congress, he aided in the organisation of the Provincial Congress which usurped the Assembly's functions and put all power into the hands of the people. Chancellor Kent thought that "in acuteness of intellect, profound thought, indefatigable activity, exhaustless energy, pure patriotism, and persevering and intrepid public efforts, Schuyler had no superior;" and Daniel Webster declared him "second only to Washington in the services he rendered the country."[14] But there was in Schuyler's make-up a touch of arrogance that displayed itself in letters as well as in manners. The soldierly qualities that made him a commander did not qualify him for public place dependent upon the suffrage of men. People respected but did not love him. If they were indignant that Gates succeeded him, they did not want him to govern them, however much it may have been in his heart to serve them faithfully.

John Morin Scott represented the radical element among the patriots. By profession he was an able and wealthy lawyer; by occupation a patriotic agitator. John Adams, who breakfasted with him, speaks of his country residence three miles out of town as "an elegant seat, with the Hudson just behind the house, and a rural prospect all around him." But the table seems to have made a deeper impression upon the Yankee patriot than the picturesque scenery of the river. "A more elegant breakfast I never saw—rich plate, a very large silver coffee-pot, a very large silver teapot, napkins of the very finest materials, toast and bread and butter in great perfection. Afterwards a plate of beautiful peaches, another of pears, another of plums, and a musk melon." As a parting salute, this lover of good things spoke of his host as "a sensible man, one of the readiest speakers upon the continent, but not very polite."[15] This is what the Tories thought. According to Jones, the Tory historian, Scott had the misfortune to graduate at Yale—"a college remarkable for its republican principles and religious intolerance," he says, and to belong to a triumvirate whose purpose was "to pull down church and state, and to raise their own government upon the ruins."[16]

Scott, no doubt, was sometimes mistaken in the proper course to pursue, but he was always right from his point of view, and his point of view was bitter hostility to English misrule. Whatever he did he did with all the resistless energy of a man still in his forties. He was of distinguished ancestry. His great-great-grandfather, Sir John Scott, baronet, of Ancrum, Scotland, had been a stalwart Whig before the revolution of 1688, and his grandfather, John Scott, coming to New York in 1702, had commanded Fort Hunter, a stronghold on the Mohawk. Both were remarkable men. Tory blood was foreign to their veins. Young John, breathing the air of independence, scorned to let his life and property depend upon the pleasure of British lords and a British ministry, or to be excluded from the right of trial by a jury of his neighbours, or of taxation by his own representatives. In 1775 he went to the Continental Congress; in 1776, to the Provincial Congress of New York; and later he participated in the battle of Long Island as a brigadier-general. After the adoption of the State Constitution he became secretary of state, and from 1780 to 1783 served in the Continental Congress. He lived long enough to see his country free, although his strenuous life ended at fifty-four.

George Clinton possessed more popular manners than either Schuyler or Scott. Indeed, it has been given to few men in New York to inspire more passionate personal attachment than George Clinton. A patriot never lived who was more bitter in his hostility to English misrule, or more uncompromising in his opposition to toryism. He was a typical Irishman—intolerant, often domineering, sometimes petulant, and occasionally too quick to take offence, but he was magnetic and generous, easily putting himself in touch with those about him, and ready, without hesitation, to help the poorest and carry the weakest. This was the kind of man the people wanted for governor.

Clinton came of a good family. His great-grandfather, a too devoted adherent of Charles I., found it healthful to wander about Europe, and finally to settle in the north of Ireland, out of reach of Cromwell's soldiers, and out of sight of his ancestral patrimony. By the time Charles II. came to the throne, the estate was lost, and this friend of the Stuarts lived on in the quiet of his secluded home, and after him, his son; but the grandson, stirred by the blood of a Puritan mother, exchanged the North Sea shore for the banks of the Hudson, where his son breathed the air that made him a leading spirit in the war for American independence. Clinton's youth is one record of precocity. Before the war began he passed through a long, a varied, even a brilliant career, climbing to the highest position in the State before he had reached the age when most men begin to fill responsible places. At fifteen he manned an American privateer; at sixteen, as a lieutenant, he accompanied his father in a successful assault upon Fort Frontenac; at twenty-six, in the colonial legislature, he became the rival of Philip Schuyler in the leadership and influence that enabled a patriotic minority to resist the aggressions of Great Britain; at thirty-six, holding a seat in the Second Continental Congress, he voted for the Declaration of Independence, and commanded a brigade of Ulster County militia.

The election which occurred in June was not preceded by a campaign of speaking. People were too busy fighting to supplement a campaign of bullets with one of words. But Jay sent out an electioneering letter recommending Philip Schuyler for governor and George Clinton for lieutenant-governor. This was sufficient to secure for these candidates the conservative vote. It showed, too, Jay's unconcern for high place. He was modest even to diffidence, an infirmity that seems to have depressed him at times as much as it did Nathaniel Hawthorne in a later day.

The returns were made to the Council of Safety, and Jay carefully scanned them as they came in. On June 20 he wrote Schuyler: "The elections in the middle district have taken such a turn as that, if a tolerable degree of unanimity should prevail in the upper counties, there will be little doubt of having, ere long, the honour of addressing a letter to your excellency. Clinton, being pushed for both offices, may have neither; he has many votes for the first and not a few for the second. Scott, however, has carried a number from him, and you are by no means without a share. You may rely on receiving by express the earliest notice of the event alluded to."[17] When the voters from Orange and other southern counties came in, however, Jay discovered that the result did not follow the line either of his wishes or of his suggestions. On the contrary, Clinton was elected to both offices by a considerable plurality.[18]

The result of the election proved a great surprise and something of a humiliation to the ruling classes. "Gen. Clinton, I am informed, has a majority of votes for the Chair," Schuyler wrote to Jay, on June 30. "If so he has played his cards better than was expected."[19] A few days later, after confirmation of the rumour, he betrayed considerable feeling. "Clinton's family and connections do not entitle him to so distinguished a pre-eminence," he wrote, showing that Revolutionary heroes were already divided into more democratic and less democratic whigs, and more aristocratic and less aristocratic patriots; but the division was still in the mind rather than in any settled policy. "He is virtuous and loves his country," added Schuyler, in the next line; "he has ability and is brave, and I hope he will experience from every patriot support, countenance and comfort."[20] Washington understood his merits. "His character will make him peculiarly useful at the head of your State," he wrote the Committee of Safety.

Clinton's inauguration occurred on July 30, 1777. He stood in front of the courthouse at Kingston on top of the barrel from which the Constitution had been published in the preceding April, and in the uniform of his country, with sword in hand, he took the oath of office. Within sixty days thereafter Sir Henry Clinton had carried the Highland forts, scattered the Governor's troops, dispersed the first Legislature of the State, burned Kingston to the ground, and very nearly captured the Governor himself, the latter, under cover of night, having made his escape by crossing the river in a small rowboat. Among the captured patriots was Colonel McClaughry, the Governor's brother-in-law. "Where is my friend George?" asked Sir Henry. "Thank God," replied the Colonel, "he is safe and beyond the reach of your friendship."

CHAPTER IV
CLINTON AND HAMILTON
1777-1789

During the war Governor Clinton's duties were largely military. Every important measure of the Legislature dealt with the public defence, and the time of the Executive was fully employed in carrying out its enactments and performing the work of commander-in-chief of the militia. A large proportion of the population of the State was either avowedly loyal to the Crown or secretly indisposed to the cause of independence. "Of all the Colonies," wrote William Jay, "New York was probably the least unanimous in the assertion and defence of the principles of the Revolution. The spirit of disaffection was most extensive on Long Island, and had probably tainted a large majority of its inhabitants. In Queens County, in particular, the people had, by a formal vote, refused to send representatives to the colonial congress or convention, and had declared themselves neutral in the present crisis."[21]

The Governor sought to crush this spirit by methods much in vogue in the eighteenth century. At the outset of his career he declared that he had "rather roast in hell to all eternity than be dependent upon Great Britain or show mercy to a damned Tory." To add to his fame, he enforced this judgment with heavy fines, long imprisonments, summary banishments, and frequent coats of tar and feathers.

Very soon after the adoption of the Constitution, the Legislature passed a law requiring an oath of allegiance to the State; and under the vigorous enforcement of this act the Governor sent many Tories from the rural districts into the city of New York or expelled them from the State. Others were required to give a pledge, with security, to reside within prescribed limits. At times even the churches were filled with prisoners, some of whom were sent to jails in Connecticut, or exchanged for prisoners of war. In 1779 the Legislature increased the penalty of disloyalty to the State, by passing the Confiscation Act, declaring "the forfeiture and sale of the estates of persons who had adhered to the enemy."

Up to this time only one political party had existed among the Whig colonists. The passage of the Confiscation Act, however, encountered the opposition of many sincere lovers of the cause of independence, who favoured a more moderate policy toward loyalists, since they were probably as sincere in their opinions as those opposed to them. Besides, a generous and magnanimous course, it was argued, would induce the return of many desirable citizens after hostilities had ceased. To this the ultra-Whigs replied that the law of self-preservation made a severe policy necessary, and if any one suffered by its operation he must look to the government of his choice for comfort and reimbursement. As for the return of the Tories, the ultras declared that only citizens sincerely loyal to an independent country would be acceptable.

This division into moderate and ultra Whigs was emphasised in 1781 by the legislative grant to Congress of such import duties as accrued at the port of New York, to be levied and collected "under such penalties and regulations, and by such officers, as Congress should from time to time make, order, and appoint." Governor Clinton did not cordially approve the act at the time of its passage, and as the money began flowing into the national treasury, he opposed the method of its surrender. In his opinion, the State, as an independent sovereignty, had associated itself with other Colonies only for mutual protection, and not for their support. At his instance, therefore, the Legislature substituted for the law of 1781 the act of March, 1783, granting the duties to Congress, but directing their collection by officers of the State. Although this act was subsequently amended, making collectors amenable to Congress, another law was enacted in 1786 granting Congress the revenue, and reserving to the State, as in the law of 1783, "the sole power of levying and collecting the duties." When Congress asked the Governor to call a special session of the Legislature, that the right to levy and collect might be yielded as before, he refused to do so.

Governor Clinton understood the commercial advantages of New York's geographical location, which were greatly enhanced by the navigation acts of other States. The peace treaty had made New York the port of entry for the whole region east of the Delaware, and into its coffers poured a revenue so marvellous as to excite hopes of a prospective wealth which a century, remarkable as was its productiveness, did little more than realise. If any State, therefore, could survive without a union with other Colonies, it was New York, and it is not surprising that many, perhaps a majority of its people, under the leadership of George Clinton, settled into a policy unfriendly to a national revenue, and later to a national government.

The Governor had gradually become mindful of an opposition as stubborn as it was persistent. He had encountered it in his treatment of the Tories, but not until Alexander Hamilton became an advocate of amnesty and oblivion, did Clinton recognise the centre and future leader of the opposing forces. Hamilton did not appear among those interested in the election of governor in 1777. His youth shut him out of Assembly and Congress, out of committees and conventions, but it did not shut him out of the army; and while Governor Clinton was wrestling with new problems of government in the formation of a new State, Hamilton was acting as secretary, aide, companion, and confidant of Washington, accepting suggestions as commands, and acquiescing in his chief's judgment with a fidelity born of love and admiration. In the history of war nothing is more beautiful than the friendship existing between the acknowledged leader of his country and this brave young officer, spirited and impulsive, brilliant and able, yet frank and candid, without ostentation and without egotism. It recalls a later-day relationship between Ulysses S. Grant and John A. Rawlins, his chief of staff.

In July, 1781, Hamilton, in command of a corps, accompanied Washington in the forced march of the American army from New York to Yorktown. This afforded him the opportunity, so long and eagerly sought, of handling an independent command at a supreme moment of danger, and before the sun went down on the 14th of October, he had led his troops with fixed bayonets, under a heavy and constant fire, over abatis, ditch, and palisades; then, mounting the parapet, he leaped into the redoubt. Washington saw the impetuosity of the attack in the face of the murderous fire, the daring leap to the parapet with three of his soldiers, and the almost fatal spring into the redoubt. "Few cases," he says, "have exhibited greater proofs of intrepidity, coolness, and firmness." Three days later Cornwallis surrendered.

In the summer of 1782 Hamilton was admitted to the bar in Albany, but soon afterward settled in New York City, where he seems to have come into practice and into fame by defending the rights of Tories. For four years after the war ended, the treatment of British sympathisers was the dominant political issue in New York. Governor Clinton advocated disfranchisement and banishment, and the Legislature enacted into law what he advised; so that when the British troops, under the peace treaty, evacuated New York, in November, 1783, loyalists who had thus far escaped the wrath of this patriot Governor, flocked to Nova Scotia and New Brunswick like birds seeking a more congenial clime, recalling the flight of the Huguenots after the revocation of the Edict of Nantes one hundred years earlier. It is not easy to estimate the number who fled before this savage and violent action of the Legislature. Sir Guy Carleton, in command at New York, fixes the emigration at one hundred thousand souls. For many years the "Landing of the Loyalists" was annually commemorated at St. John, and in the cemeteries of England and Scotland are found the tombstones of these unfortunate devotees of the mother country.

It is likely Clinton was too intolerant, but it was the intolerance that follows revolution. Hamilton, on the other hand, became an early advocate of amnesty and oblivion, and, although public sentiment and the Legislature were against him, he finally succeeded in modifying the one and changing the other. "Nothing is more common," he observed, "than for a free people in times of heat and violence to gratify momentary passions by letting in principles and precedents which afterwards prove fatal to themselves. If the Legislature can disfranchise at pleasure, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion, without hearing or trial, no man can be safe. The name of liberty applied to such a government would be a mockery of common sense."[22]

The differences between Congress and the Legislature respecting the collection of duties also brought Clinton and Hamilton into conflict. As early as 1776 Hamilton had considered the question whether Congress ought not to collect its own taxes by its own agents,[23] and, when a member of Congress in 1783, he urged it[24] as one of the cardinal features of an adequate federal system. In 1787 he was a member of the Legislature. Here he insisted upon having the federal revenue system adopted by the State. His argument was an extended exposition of the facts which made such action important.[25] Under the lead of Clinton, however, New York was willing to surrender the money, but not the power of collection to Congress.

Meantime, the pitiable condition to which the Confederation had come, accented the need of a stronger central government. To this end Clinton and Hamilton seemed for several years to be working in harmony. In 1780 Clinton had presented to the Legislature the "defect of power" in the Confederation, and, in 1781, John Sloss Hobart and Egbert Benson, representing New York at a convention in Hartford, urged the recommendation empowering Congress to apportion taxes among the States in the ratio of their total population. The next year, Hamilton, although not a member of the Legislature, persuaded it to adopt resolutions written by him, declaring that the powers of the central government should be extended, and that it should be authorised to provide revenue for itself. To this end "it would be advisable," continued the resolutions, "to propose to Congress to recommend, and to each State to adopt, the measure of assembling a general convention of the States, specially authorised to revise and amend the Constitution." To Washington's farewell letter, appealing for a stronger central government, Governor Clinton sent a cordial response, and in transmitting the address to the Legislature in 1784, he recommended attention "to every measure which has a tendency to cement the Union, and to give to the national councils that energy which may be necessary for the general welfare."[26]

Nevertheless, Clinton was not always candid. His official communications read like the utterances of a friend; but his influence, as disclosed in the acts of 1783 and 1786, reserving to the State the sole power of levying and collecting duties, clearly indicate that while he loved his country in a matter-of-fact sort of way, it meant a country divided, a country of thirteen States each berating the other, a country of trade barriers and commercial resentments, a country of more importance to New York and to Clinton than to other Commonwealths which had made equal sacrifices.

Thus matters drifted until New York and other middle Atlantic States discovered that it was impossible under the impotent Articles of Confederation to regulate commerce in waters bordered by two or more States. Even when New York and New Jersey could agree, Pennsylvania, on the other side of New Jersey, was likely to withhold its consent. Friction of a similar character existed between Maryland and Virginia, North Carolina and Virginia, and Maryland and Pennsylvania. This compelled Congress to call the convention, to which commissioners from New York, New Jersey, Pennsylvania, Delaware, and Virginia, assembled at Annapolis in 1786, to consider the trade and commerce of the United States, and to suggest measures for the action of Congress. Hamilton and Egbert Benson were members of this body, the former of whom wrote the address, afterward adopted, which declared the federal government inefficient, and proposed a convention to revise the Articles of Confederation,[27] in order to render them adequate to the exigencies of the Union. This was the resolution unanimously adopted by the New York Legislature in 1782, but to the surprise of Hamilton and the friends of a stronger government, the Legislature now disapproved such a convention. The idea did not please George Clinton. As Hamilton summed up the opposition, it meant disinclination to taxation, fear of the enforcement of debts, democratic jealousy of important officials, and the influence of foreign powers.[28]

In 1787, however, the Legislature adopted a joint resolution instructing members of Congress from the State to urge that a convention be held to amend the Articles of Confederation, and, when Congress issued the call,[29] Robert Yates, John Lansing, Jr., and Alexander Hamilton were elected delegates "for the sole purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations as shall, when agreed to by Congress and confirmed by the several States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." Hamilton's election to this convention was cited as proof of Clinton's disposition to treat fairly the opponents of state supremacy, since it was well understood that his presence at Philadelphia would add the ablest and most ultra exponent of a strong, central government. It was certainly in Clinton's power to defeat Hamilton as he did John Jay, but his liberality carried a high check-rein, for Robert Yates and John Lansing were selected to overcome Hamilton's vote.

Clinton's first choice for a delegate was Yates, whose criticism of the work of the convention manifests hostility to a Union. He seemed to have little conception of what would satisfy the real needs of a strong government, preferring the vague doctrines of the old Whigs in the early days of revolution. Lansing was clearer, and, perhaps, less extreme in his views; but he wanted nothing more than an amendment of the existing Confederation, known as the New Jersey plan.[30] The moment, therefore, that a majority favoured the Virginia plan which contemplated a national government with an executive, legislature, and judiciary of its own, Lansing and Yates, regarding it a violation of their instructions, and with the approval of Governor Clinton, withdrew[31] from the convention and refused to sign the Constitution after its adoption.[32]

Hamilton doubted if Madison's plan was strong enough to secure the object in view. He suggested a scheme continuing a President and Senate during good behaviour, and giving the federal government power to appoint governors of States and to veto state legislation. In the notes of a speech presenting this plan, he disclaimed the belief that it was "attainable," but thought it "a model which we ought to approach as near as possible."[33] After the Madison plan had been preferred, however, Hamilton gave it earnest support, and although he could not cast New York's vote, since a majority of the State's representatives had withdrawn, he was privileged to sign the Constitution. If he had never done anything else, it was glory enough to have subscribed his name to that immortal record. When Hamilton returned home, however, he found himself discredited by a majority of the people. "You were not authorised by the State," said Governor Clinton.[34] Richard Morris, the chief justice, remarked to him: "You will find yourself, I fear, in a hornet's nest."[35]

On September 28, 1787, Congress transmitted a draft of the Constitution, which required the assent of nine of the thirteen States, to the several legislatures. At once it became the sole topic of discussion. In New York it was the occasion of riots, of mobs, and of violent contests. It was called the "triple-headed monster," and declared to be "as deep and wicked a conspiracy as ever was invented in the darkest ages against the liberties of a free people." Its opponents, numbering four-sevenths of the community—although their strength was mainly in the country[36]—and calling themselves Federal Republicans, organised a society and opened correspondence with leading men in other States. "All the old alarm about liberty was now revived," says W.G. Sumner, "and all the elements of anarchy and repudiation which had been growing so strong for twenty years were arrayed in hostility."[37] But its bitterest opponent in the thirteen Colonies was George Clinton.[38] "He preferred to remain the most powerful citizen of New York, rather than occupy a subordinate place under a national government in which his own State was not foremost."[39] On the other hand, the Federalist, written largely by Hamilton, carried conviction to the minds of thousands who had previously doubted the wisdom of the plan. In the last number of the series, he said: "The system, though it may not be perfect in every part, is upon the whole a good one, is the best that the present views and circumstances will permit, and is such an one as promises every species of security which a reasonable people can desire."[40]

When the Legislature opened, Governor Clinton delivered the usual speech or message, but he said nothing of what everybody else was talking about. Consideration of the Constitution was the only important business before that body; four States had already ratified it, and three others had it under consideration; yet the Governor said not a word. His idea was for New York to hold off and let the others try it. Then, if the Union succeeded, although revenue difficulties were expected to break it up immediately,[41] the State could come in. Meantime, like Patrick Henry of Virginia, he proposed another general convention, to be held as soon as possible, to consider amendments. Thus matters drifted until January, 1788, when Egbert Benson, now a member of the Legislature, offered a resolution for holding a state convention to consider the federal document. Dilatory motions blocked its way, and its friends began to despair of better things; but Benson persisted, until, at last, after great bitterness, the resolution was adopted.

Of the sixty-one delegates to this convention, which assembled at the courthouse in Poughkeepsie on June 17, two-thirds were opposed to the Constitution.[42] The convention organised with Governor Clinton for president. Among the champions of the Constitution appeared Hamilton, Jay, Robert R. Livingston, Robert Morris, James Duane, then mayor of New York, John Sloss Hobart, Richard Harrison, and others of like character. Robert Yates, Samuel Jones, Melancthon Smith, and John Lansing, Jr., led the fight against it. Beginning on June 19, the discussion continued until July 28. Hamilton, his eloquence at its best, so that at times there was not a dry eye in the assembly,[43] especially emphasised the public debt. "It is a fact that should strike us with shame, that we are obliged to borrow money in order to pay the interest of our debt. It is a fact that these debts are accumulating every day by compound interest."[44] In the old Confederation, he declared, the idea of liberty alone was considered, but that another thing was equally important—"I mean a principle of strength and stability in the organisation of our government, and of vigour in its operations."[45] Professor Sumner, in his admirable biography, expresses surprise that nothing is said about debts in the Federalist, and comparatively little about the Supreme Court. "This is very remarkable," he says, "in view of the subsequent history; for if there is any 'sleeping giant' in the Constitution, it has proved to be the power of the Supreme Court to pass upon the constitutionality of laws. It does not appear that Hamilton or anybody else foresaw that this function of the Court would build upon the written constitution a body of living constitutional law."[46]

Melancthon Smith was the ablest opponent of the Constitution. Familiar with political history, and one of the ablest debaters in the country, he proved himself no mean antagonist even for Hamilton. "He must have been a man of rare candour, too," says John Fiske, "for after weeks of debate he owned himself convinced."[47] Whatever could be said against the Constitution, Smith voiced it; and there was apparent merit in some of his objections. To a majority of the people, New York appeared to be surrendering natural advantages in much larger measure than other Commonwealths, while its concession of political power struck them as not unlikely to endanger the personal liberty of the citizen and the independence of the State. They disliked the idea of a far-off government, with many officers drawing large salaries, administering the army, the navy, and the diplomatic relations with nations of the Old World. It was so different from anything experienced since their separation from England, that they dreaded this centralised power; and, to minimise it, they proposed several amendments, among them one that no person should be eligible to the office of President for a third term. Time has demonstrated the wisdom of some of these suggestions; but commendable as they now appear after the lapse of more than a century, they were of trifling importance compared to the necessity for a closer, stronger union of the States in 1787.

Federalists were much alarmed over the failure of New York to ratify. Although the State ranked only fifth in population, commercially it was the centre of the Union. From the standpoint of military movements, too, it had been supremely important in the days of Montcalm and Burgoyne, and it was felt that a Federal Union cut in twain by the Mohawk and Hudson valleys must have a short life. "For my own part," said Hamilton, "the more I can penetrate the views of the anti-federal party in this State, the more I dread the consequences of the non-adoption of the Constitution by any of the other States—the more I fear eventual disunion and civil war."[48] His fear bred an apparent willingness to agree to a conditional ratification,[49] until Madison settled the question that there could be no such thing as conditional ratification since constitutional secession would be absurd. On July 11 Jay moved that "the Constitution be ratified, and that whatever amendments might be deemed expedient should be recommended." This, however, did not satisfy the opposition, and the discussion continued.

Hamilton, however, did not rely upon argument alone. He arranged for news of the Virginia and New Hampshire conventions, and while Clinton, clinging to his demand for conditional ratification, still hesitated, word came from New Hampshire, by a system of horse expresses, telling the glad story that the requisite number of States had been secured. This reduced the question to ratification or secession. A few days later it was learned that Virginia had also joined the majority. The support of Patrick Henry had been a tower of strength to Governor Clinton, and his defeat exaggerated Clinton's fear that New York City and the southern counties which favoured the Constitution might now execute their threat to split off unless New York ratified. Then came Melancthon Smith's change to the federalist side. This was like crushing the centre of a hostile army. Finally, on July 28, a resolution "that the Constitution be ratified in full confidence that the amendments proposed by this convention will be adopted," received a vote of thirty to twenty-seven. Governor Clinton did not vote, but it was known that he advised several of his friends to favour the resolution. On September 13, he officially proclaimed the Federal Constitution as the fundamental law of the Republic.

Posterity has never severely criticised George Clinton's opposition to national development. His sincerity and patriotism have been accepted. To Washington and Hamilton, however, his conduct seemed like a cold and selfish desertion of his country at the moment of its utmost peril. "The men who oppose a strong and energetic government," wrote Washington to Hamilton on July 10, 1787, the day of Yates' and Lansing's retirement from the Philadelphia convention, "are, in my opinion, narrow-minded politicians, or are under the influence of local views." This reference to "local views" meant George Clinton, upon whose advice Yates and Lansing acted, and who declared unreservedly that only confusion could come to the country from a convention and a measure wholly unnecessary, since the Confederation, if given sufficient trial, would probably answer all the purposes of the Union.

The march of events has so clearly proved the wisdom of Hamilton and the unwisdom of Clinton, that the name of one, joined inseparably with that of Washington, has grown with the century, until it is as much a part of the history of the Union as the Constitution itself. The name of George Clinton, on the contrary, is little known beyond the limits of his native State. It remained for DeWitt Clinton, the Governor's distinguished nephew, to link the family with an historic enterprise which should bring it down through the ages with increasing respect and admiration.

CHAPTER V
CLINTON’S FOURTH TERM
1789-1792

At each triennial election for twelve years, ever since the adoption of the State Constitution in 1777, George Clinton had been chosen governor. No one else, in fact, had ever been seriously talked of, save John Jay in 1786. Doubtless Clinton derived some advantage from the control of appointments, which multiplied in number and increased in influence as term succeeded term, but his popularity drew its inspiration from sources other than patronage. A strong, rugged character, and a generous, sympathetic nature, sunk their roots deeply into the hearts of a liberty-loving people who supported their favourite with the fidelity of personal friendship.

The time had, however, come at last when Clinton's right to continue as governor was to be contested. Hamilton's encounter with the New York opponents of the Federal Constitution had been vigorous and acrimonious. It was easy to stand with one's State in opposing the Constitution when opposition had behind it the powerful Clinton interest and the persuasive Clinton argument that federal union meant the substitution of experiment for experience, and the exchange of a superior for an inferior position; but it required a splendid stubbornness to face, daringly and aggressively, the desperate odds arrayed against the Constitution. Every man who wanted to curry favour with Clinton was ready to strike at Hamilton, and they covered him with obloquy. Very likely his attitude was not one to tempt the forbearance of angry opponents. He did not fight with gloves. Nevertheless, his success added one more to his list of splendid victories. He had beaten Clinton in his intolerant treatment of loyalists; he had beaten him in obtaining for Congress the sole power of regulating commerce; he had beaten him in the Philadelphia convention called to frame a federal constitution; he had beaten him in a state convention called to ratify that constitution; and now he proposed to beat him for governor in a State which would have great influence in smoothing the way for the new federal government.

After the close of the Revolution, there had been local parties in the various Stales, divided on issues of hard and soft money, on imposts, on treatment of Tories, and on state rights, and these issues had coincided in many of the States. During the contest growing out of the adoption of the Federal Constitution, all these elements became segregated into two great political parties, those who supported the Constitution being known as Federalists—those who were opposed to strengthening the bond between the States being called anti-Federalists. The latter were clearly in the majority in New York, and Hamilton rightly inferred that, notwithstanding the people, since the adoption of the Constitution, manifested a disposition to sustain the general government, a large majority of freeholders, having heretofore supported Clinton as a wise, patriotic governor, would not now desert him for an out-and-out Federalist. To meet this emergency, several Federalists, at a meeting held February 11, 1789, nominated Robert Yates, an anti-Federalist judge of the Supreme Court, hoping thus to form a coalition with the more moderate men of his party.

In support of such politics, of the doubtful wisdom of which there was abundant illustration in the recent unnatural coalition between Lord North and the brilliant Charles James Fox, Hamilton wrote to his friends in Albany that in settling upon a candidate, some difficulties occurred. "Our fellow citizens in some parts of the State," he said, "had proposed Judge Yates, others had been advocates of Lieutenant-Governor Van Cortlandt, and others for Chief Justice Morris. It is well known that the inhabitants of this city are, with few exceptions, strongly attached to the new Constitution. It is also well known that the Lieutenant-Governor and Chief Justice, whom we respect and esteem, were zealous advocates for the same cause. Had it been agreed to support either of them for governor, there would have been reason to fear that the measure would have been imputed to party, and not to a desire of relieving our country from the evils they experience from the heats of party. It appeared, therefore, most advisable to elect some man of the opposite party, in whose integrity, patriotism, and temper, confidence might be placed, however little his political opinions on the question lately agitated might be approved by those who were assembled upon that occasion.

"Among the persons of this description, there were circumstances which led to a decision in favour of Judge Yates. It is certain that as a man and a judge he is generally esteemed. And, though his opposition to the new Constitution was such as his friends cannot but disapprove, yet, since the period of its adoption, his conduct has been tempered with a degree of moderation, and seems to point him out as a man likely to compose the differences of the State. Of this at least we feel confident, that he has no personal revenge to gratify, no opponents to oppress, no partisans to provide for, nor any promises for personal purposes to be performed at the public expense."[50]

To many the selection of Robert Yates seemed almost ungracious. The Federalists wanted Richard Morris, chief justice of the Supreme Court, who had encouraged the establishment of a strong government, and, as a member of the Poughkeepsie convention, had voted to ratify the Federal Constitution. Besides, he was a gentleman of the old school, of inflexible integrity, firm and decided in character, whose full, rounded face and commanding presence appeared to advantage among the stately and dignified personages who supported knee breeches and silk stockings, and displayed the delicate ruffles of a shirt under the folds of a rich velvet coat. Hamilton was fond of Morris, and recognised the justice of his claims. Their views in no wise differed, their families were intimate, and at the Poughkeepsie convention, after listening for three hours to Hamilton's speech, Morris had pronounced it the ablest argument and most patriotic address ever heard in the State of New York. But the great Federalist, determined to destroy Clinton, wanted availability, not fidelity, and so Morris declined in favour of Yates.

In everything Robert Yates was an anti-Federalist. He dressed like one and he talked like one. He had been an opponent of the Federal Constitution, an advocate of the doctrine of state supremacy, and an ardent supporter of the Governor. With Clinton's approval he had withdrawn from the Philadelphia convention when the majority favoured a strong government wielding supreme authority; with Clinton's approval, he had opposed the ratification of the Federal Constitution in the state convention at Poughkeepsie, and with Clinton's approval he declined to change his vote, although New Hampshire's action and Hamilton's speech had already settled the question of ratification. What Hamilton proposed, Yates opposed; what Clinton advocated, Yates approved. After the ratification of the Constitution, however, Robert Yates charged the grand jury that it would be little short of treason against the Republic to disobey it. "Let me exhort you, gentlemen," he said, "not only in your capacity as grand jurors, but in your more durable and equally respectable character as citizens, to preserve inviolate this charter of our national rights and safety, a charter second only in dignity and importance to the Declaration of our Independence."

Upon the bench Yates distinguished himself for impartiality and independence, if not for learning. He abated the intemperate zeal of patriotic juries, and he refused to convict men suspected of disloyalty, without proof. On one occasion he sent a jury back four times to reconsider a verdict of guilty unauthorised by the evidence, and subsequently treated with indifference a legislative threat of impeachment, based upon a fearless discharge of duty. He could afford to be just, for, like George Clinton, he had early embraced the cause of the Colony against the Crown. From an Albany alderman he became a maker of the State Constitution, and from a writer of patriotic essays, he shone as an active member of the Committee of Safety. Together with John Jay and Robert R. Livingston, he had obstructed the passage of Lord Howe's ships up the Hudson, and with General Schuyler he devised measures to repel the British from the northern and western frontier. He had helped to fix the dividing line between Massachusetts and New York, and, as one of the Council of Administration, he governed southern New York from the withdrawal of the British until the assembling of the Legislature.

Having decided to go outside his own party, Hamilton made no mistake in picking his man. If Clinton was the Hampden of the colonial period, Robert Yates could well be called its Pym. He had toleration as well as patriotism. But he also had an itching desire for office. Some one has said that the close connection between man and a child is never more clearly illustrated than in the joy and pride which the wisest statesman feels in the wearing of a ribbon or a star. It could not be said of Robert Yates then, as it was said, with good reason, six years later, that his desire for office extinguished his devotion to party and his character for political consistency, but it was openly charged that, upon the suggestion of Hamilton, he urged the grand jury to support the Federal Constitution in order to strengthen himself with the Federalists. Whether this be true or not, Yates' previous devotion to the anti-Federalist party set his present conduct in sharp contrast to that of other distinguished anti-Federalist statesmen of the time—to men like Samuel Jones and Melancthon Smith, who accepted the action of the Poughkeepsie convention, but supported George Clinton. "Men, not principles, are involved," they declared.

All that we know of Yates would seem to deny his surrender of principle, or his condescension to any act of baseness, to obtain office. It was indeed a question whether Clinton, or Hamilton through Yates, should control the state government; but the gubernatorial contest involved more than that. The new government, soon to be placed on trial, needed the help of sympathetic governors and legislatures, and Clinton and his supporters, forced to accept the Constitution, could hardly be regarded as its wisest and safest guardians. From Hamilton's standpoint, therefore, it was more principle than men. However agreeable to him it might be to defeat and humiliate Clinton, greater satisfaction must spring from the consciousness that while in its leading-strings, at least, the general government would have the hearty support of New York.

Hamilton's great coalition, intended to work such wonders, boasted many brilliant names. Of the younger men Robert Troup, of Hamilton's age, an early friend of Burr, took a most conspicuous part, while among the older members of this galaxy was James Duane, a lawyer of rare ability, the first mayor of New York, for ten years continuously in the Continental Congress, a man of great force, of large wealth, and superb character. He was in his forties when Hamilton, a boy of seventeen, won his heart by a single speech, denouncing the act of Parliament which closed the port of Boston. The most notable man in the coalition, next to Hamilton and Jay, was Robert R. Livingston, now Hamilton's devoted friend, before long to be his bitter enemy. He was still young, little more than forty, but in everything he was bold and skilful, vigorous as a writer, eloquent as a speaker, deeply learned as a jurist, and rich in scholarship. Of the same age as Livingston was William Duer,[51] who started at eighteen as an aide to Lord Clive in India. Duer was at one time the most useful man in America. Nobody could cheat him. As soon as Hamilton became secretary of the treasury, he made Duer assistant secretary, an office which he held with credit until 1790, when he resigned to become the chief of a ring of speculators, who, two years later, left him insolvent and in jail. Hamilton's coalition also furnished the only instance of the political association of himself and Burr, although Burr's support of Yates is said to have been personal rather than political. The story is that Burr, seeking admission to the bar after reading law less than a year, induced Judge Yates to suspend the rule requiring three years of study, because of the applicant's term as a soldier, a service that laid the foundation of a lasting friendship.

On the opposite side were many men who live in history as builders of the Empire State. None belong to the gallery of national characters, perhaps, but John Lansing, Livingston's successor as chancellor, and Samuel Jones,[52] the first state comptroller, known, by common consent, as the father of the New York bar, find places in the list of New York's ablest statesmen. To this memorable company also belonged Melancthon Smith, the head of the anti-Federalist forces at the Poughkeepsie convention, and Gilbert Livingston of Dutchess, whose one patriotic address was the last blow needed to ratify the Constitution. He was not, like Smith, a great debater, but his ready eloquence classed him among the orators who were destined to live in the memory of a later generation. Beside him was James Clinton, brother of the Governor and father of DeWitt Clinton. A soldier by profession, he had taken part in several important battles and marches, charging with Bradstreet at the capture of Fort Frontenac, following the lamented Montgomery to Quebec, and serving with Sullivan in his famous expedition against the Indians. Finally, he shared in the glory of being with Washington at the surrender of Lord Cornwallis. He seems to have been the real soldier of the family, blending the strong, active powers of the Clinton mind with the gentler virtues which made him as sympathetic on the field as he was affectionate in the home.

Thus the contest between Yates and Clinton, although the first real political conflict in the history of the State, became one of the sharpest and most bitterly fought. For six weeks the atmosphere was thick and hot with political passion. Veteran observers declared that their generation had seen nothing like it. But the arguments of Duer, the powerful influence of Chancellor Livingston, the leadership of Hamilton, and the phenomenal popularity of John Jay, could not win the voters who saw nothing more in the arrangement than a question of individual preference, and while Yates carried the western district by a large majority and held his own in the southern, Clinton's home county gave him 1093 out of 1245 votes, making his majority 429 in a total vote of 12,353.

The call for the Governor was so close that he quickly prepared for a repetition of the contest in 1792. The inauguration of Washington on April 30 had given Hamilton control of the federal offices in New York, and, although of trifling importance compared to state patronage, they were used to strengthen federalism, and, if possible, to destroy Clinton. John Jay became chief justice of the Supreme Court, James Duane judge of the District Court, Richard Harrison United States attorney, and William S. Smith United States marshal. It was a brilliant array of talent and legal learning. Of the lights and ornaments of the law in his day, Richard Harrison excelled in an intimate knowledge of its intricacies and mysteries. Added to these officials were Rufus King and Philip Schuyler, United States senators, and three members of Congress, with Egbert Benson at their head. As secretary of the treasury and the trusted friend of the President, Hamilton had also multiplied his personal influence.

Governor Clinton felt the full force of the Federalist combination, the fear of which had intensified his hostility to the Union; but he governed his conduct with the toleration and foresight of a master politician. He declined to punish those who had deserted his standard, refusing to accept Robert Yates' apostacy as sufficient cause to bar his promotion as chief justice, and appointing to the vacancy John Lansing, Jr., who, although a strong anti-Federalist, had already shown an independence of political domination.

But the master-stroke of Clinton's diplomacy displayed itself in the appointment of Aaron Burr as attorney-general. After Burr left the army "with the character of a true knight," as John Adams put it, he began the practice of law at Albany. Later he removed to New York, taking up his home in Maiden Lane. Thus far his political career, limited to two terms in the Legislature, had been insignificant. During the great controversy over the Federal Constitution he remained silent. His silence, however, was the silence of concealment. He shared no confidences, he exploited no principles, he did nothing in the open. He lived in an air of mystery, writing letters in cipher, using messengers instead of the mails, and maintaining espionage upon the movements of others. Of himself he wrote to Theodosia, "he is a grave, silent, strange sort of animal, inasmuch that we know not what to make of him." In the political parlance of to-day, his methods savoured of the "still hunt," and in their exercise he exhibited the powers of a past-master in stirring up men's prejudices, and creating divisions among his rivals; but his methods, whether practised in law or in politics, were neither modern nor moral. He marshalled forces with equal celerity under either flag.

Shortly after Burr moved into Maiden Lane, Hamilton made his home in Wall Street. Their first meeting, which occurred on the road from Harlem bridge to White Plains during the disastrous retreat of Washington's army from Manhattan in September, 1776, had been characterised by mutual dislike. Burr, with the rank of major, acted as aide to General Putnam; Hamilton, as an officer of artillery, was soon to become an aide to Washington. Both were young then—Hamilton not yet twenty, Burr scarcely twenty-one; yet their character, then fully developed, shines out in their estimate of the commander-in-chief. Burr thought Washington inferior as an officer, and weak, though honest, as a man; Hamilton thought him a great soldier and a great statesman, upon whose services the welfare of the country largely depended. Burr's prejudices settled into positive dislike; Hamilton's appreciation voiced the sentiment of the people and the judgment of posterity.

There is a legend that from the first, destiny seemed determined to oppose the genius and fame of Hamilton with the genius and fame of Aaron Burr. It is certainly a remarkable coincidence that two men, born without the State, so nearly of an age, so similar in brilliant attainments, so notably distinguished in charm of manner and phenomenal accomplishments, and so strikingly alike in ripeness of intelligence and bent of ambition, should happen to have lived at the same time, in the same city, and become members of the same profession; yet it is not surprising that these men should prove formidable rivals and deadly foes, since difference in character was far more real than resemblance of mental attainments. Both were fearless and brave, but the one was candid, frank and resolute; the other subtle, crafty and adventurous. Perhaps their only common characteristic was an ungoverned admiration for the charms of women, though, unlike Burr, Hamilton neither bragged of his amours, nor boasted that success attended his pursuit of pleasure.

It can hardly be supposed that in appointing Burr attorney-general, Clinton did not have in mind the necessity of securing to the ranks of the anti-Federalists all talented and spirited young men; but it is none the less evident that Clinton was thinking more of himself than of his party. Burr figured as an ugly opponent in the recent campaign. Besides, he possessed the happy faculty of surrounding himself with young men who recognised in him a superlative combination of bravery, chivalry, and ability. Hamilton called them "Burr's myrmidons," but Theodosia, with a daughter's devotion and diplomatic zeal, entitled them "the Tenth Legion." They had joined Burr when a violent Whig in 1784, sending him to the Assembly for two terms; they had rallied under his call to the Sons of Liberty, attracting the fierce fire of Hamilton; and they had broken party bonds to support Robert Yates because of their chief's personal friendship.

Such a man would attract the attention of any political manager, and although Clinton up to this time had had no particular relations with Burr, the latter's enthusiastic support of Yates accentuated his political value. In after years Burr declared that Clinton had always been his rival, and Clinton no less frankly avowed his distrust of Burr, charging him with always being "for sale;" but Burr's rivalry and Clinton's distrust do not date back to 1790.

If Clinton thought himself fortunate in gaining Burr, he was still more fortunate in the defection of the influential Livingstons. What Cæsar said of Gaul used to be said of the Empire State, that all New York was divided into three parts—the Clintons, the Livingstons, and the Schuylers. Parton said "the Clintons had power, the Livingstons had numbers, and the Schuylers had Hamilton."[53] In 1788 seven members of the Livingston family, with the Schuylers, had overthrown the Clintons, and turned the Confederation into the Union. Robert R. Livingston, standing at their head, was the exponent of a liberal policy toward all American citizens, and the champion of a broader national life. His associates were the leading Federalists; his principles were the pillars of his party; and his ambitions centred in the success and strength of his country.

Prudence, therefore, if no higher motive, required that the Livingstons be not overlooked in the division of federal patronage. There was much of it to divide. Besides cabinet positions and judicial appointments, the foreign service offered rare opportunities to a few accomplished statesmen and recognised scholars. Robert R. Livingston, as chancellor of New York, stood in line of promotion for chief justice of the United States Supreme Court, but John Jay stood nearer to Hamilton, just as Philip Schuyler did when United States senators were chosen. Other honourable and most desirable positions, however, were open. John Quincy Adams thought a mission to England or France better than the Cabinet, but Gouverneur Morris went to France, Thomas Pinckney to England, William Short to Spain, and David Humphreys to Portugal. The Livingstons were left out.

Hamilton's funding system, especially the proposed assumption of state debts, then dividing the public mind, afforded plausible cause for opposing federalism; and ostensibly for this reason, the Livingstons ceased to be Federalists. Some of the less conspicuous members, residents of Columbia County, continued their adherence, but the statesmen who give the family its name in history wanted nothing more of a party whose head was a "young adventurer," a man "not native to the soil," a "merchant's clerk from the West Indies." The story is that the Chancellor convened the family and made the separation so complete that Washington's subsequent offer of the mission to France failed to secure his return.

The first notice of the Livingston break was in the election of a United States senator in 1791. Philip Schuyler, Hamilton's father-in-law, confidently expected a re-election. His selection for the short term was with this understanding. But several members of the Assembly, nominally Federalists, were friendly to Clinton, who preferred Aaron Burr to Schuyler because of Hamilton's influence over him;[54] and when the Governor promised Morgan Lewis, the Chancellor's brother-in-law, Burr's place as attorney-general, Livingston's disposition to injure Hamilton became intensified, and to the disappointment of Schuyler, the vote of the Legislature disclosed a small majority for Burr.

It is easy to conjecture that the haughty, unpopular, aristocratic old General[55] would not be as acceptable as a young man of thirty-five, fascinating in manner, gifted in speech, and not yet openly and offensively partisan; but it needed something more than this charm of personality to line up the hard-headed, self-reliant legislator against Hamilton and Philip Schuyler, and Burr found it in his appeal to Clinton, and in the clever brother-in-law suggestion to Livingston.

The defeat of Schuyler was a staggering blow to Hamilton. The great statesman had achieved success as secretary of the treasury, but as a political manager, his lack of tact, impatience of control, and infirmity of temper, had crippled the organisation. In less than three years the party had lost a United States senator, suffered the separation of a family vastly more important than federal appointees, and sacrificed the prestige of victory, so necessary to political success.

CHAPTER VI
GEORGE CLINTON DEFEATS JOHN JAY
1792-1795

Burr’s rapid advancement gave full rein to his ambition. Not content with the exalted office to which he had suddenly fallen heir, he now began looking for higher honours; and when it came time to select candidates for governor, he invoked the tactics that won him a place in the United States Senate. He found a few anti-Federalists willing to talk of him as a stronger candidate than George Clinton, and a few Federalists who claimed that the moderate men of both parties would rally to his support. In the midst of the talk Isaac Ledyard wrote Hamilton that "a tide was likely to make strongly for Mr. Burr,"[56] and James Watson, in a similar strain, argued that Burr's chances, if supported by Federalists, would be "strong."[57]

Clinton's firm hold upon his party quickly checked Burr's hope from that quarter, but the increasing difficulty among Federalists to find a candidate offered opportunity for Burr's peculiar tactics, until his adherents were everywhere—on the bench, in the Legislature, in the drawing-rooms, the coffee-houses, and the streets. Hamilton had only to present him and say, "Here is your candidate," and Aaron Burr would cheerfully have opposed the friend who, within less than two years, had appointed him attorney-general and elected him United States senator. But Hamilton deliberately snuffed him out. The great Federalist had finally induced John Jay to become the candidate of his party. This was on February 13, 1792. Two days later, the anti-Federalists named George Clinton and Pierre Van Cortlandt, the old ticket which had done service for fifteen years.

In inducing John Jay to lead his party, Hamilton made a good start. Heretofore Jay had steadily refused to become a candidate for governor. "That the office of the first magistrate of the State," he wrote, May 16, 1777, "will be more respectable as well as more lucrative than the place I now fill is very apparent; but my object in the course of the present great contest neither has been nor will be either rank or money."[58] After his return from Europe, when Governor Clinton's division of patronage and treatment of royalists had become intensely objectionable, Jay was again urged to stand as a candidate, but he answered that "a servant should not leave a good old master for the sake of more pay or a prettier livery."[59] If this was good reasoning in 1786 and 1789, when he was secretary of foreign affairs, it was better reasoning in 1792, when he was chief justice of the United States; but the pleadings of Hamilton seem to have set a presidential bee buzzing, or, at least, to have started ambition in a mind until now without ambition. At any rate, Jay, suddenly and without any apparent reason, consented to exchange the most exalted office next to President, to chance the New York governorship.

There had never been a time since John Jay entered public life that he was not the most popular man in the city of New York. In 1788 he received for delegate to the Poughkeepsie convention, twenty-seven hundred and thirty-five votes out of a total of twenty-eight hundred and thirty-three. John Adams called him "a Roman" because he resembled Cato more than any of his contemporaries. Jay's life divided itself into three distinct epochs of twenty-eight years each—study and the practice of law, public employment, and retirement. During the years of uninterrupted public life, he ran the gamut of office-holding. It is a long catalogue, including delegate to the Continental Congress, framer of the New York Constitution, chief justice of the New York Supreme Court, president of the Continental Congress, minister to Spain, member of the Peace Commission, secretary of foreign affairs, chief justice of the United States Supreme Court, negotiator of the Jay treaty, and finally governor of New York. No other American save John Quincy Adams and John Marshall ever served his country so continuously in such exalted and responsible place. On his return from Europe after an absence of five years, Adams said he returned to his country "like a bee to its hive, with both legs loaded with merit and honour."[60]

Jay accepted the nomination for governor in 1792, on condition that he be not asked to take part in the campaign. "I made it a rule," he wrote afterward, "neither to begin correspondence nor conversation upon the subject."[61] Accordingly, while New York was deeply stirred, the Chief Justice leisurely rode over his circuit, out of hearing and out of sight of the political disturbance, apparently indifferent to the result.

The real political campaign which is still periodically made in New York, may be said to have had its beginning in April, 1792. Seldom has an election been contested with such prodigality of partisan fury. The rhetoric of abuse was vigorous and unrestrained; the campaign lie active and ingenious; the arraignment of class against class sedulous and adroit, and the excitement most violent and memorable. If a weapon of political warfare failed to be handled with craft and with courage, its skilful use was unknown.

Indeed, if any one doubts that it was a real time of political upheaval, he has only to glance at local histories. Federalists and anti-Federalists were alike convulsed by a movement which was the offspring of a genuine and irresistible enthusiasm of that strong, far-reaching kind that makes epochs in the history of politics. The people having cut loose from royalty, now proposed cutting loose from silk stockings, knee breeches, powdered hair, pigtails, shoe buckles, and ruffled shirts—the emblems of nobility. Perhaps they did not then care for the red plush waistcoats, the yarn stockings, and the slippers down at the heel, which Jefferson was to carry into the White House; but in their effort to overthrow the tyranny of the past, they were beginning to demand broader suffrage and less ceremony, a larger, freer man, and less caste. To them, therefore, Jay and Clinton represented the aristocrat and the democrat. Jay, they said, had been nurtured in the lap of ease, Clinton had worked his way from the most humble rank; Jay luxuriated in splendid courts, Clinton dwelt in the home of the lowly son of toil; Jay was the choice of the rich, Clinton the man of the people; Jay relied upon the support of the President and the Secretary of the Treasury, Clinton upon the poor villager and the toiling farmer.

Newspapers charged Jay with saying that "there ought to be in America only two sorts of people, one very rich, the other very poor,"[62] and to support the misrepresentation, they quoted his favourite maxim that "those who own the country ought to govern it," pointing to the State Constitution which he drafted, to prove that only the well-to-do could vote. The Dutch, largely the slave holders of the State, accused him of wishing to rob them by the abolition of slavery. Dressed in other rhetorical clothes, these stories did service again in 1795 and 1798.

But the assumption of state debts, and Hamilton's financial system, became the fiercest objects of attack. To them were traced the "reign of speculators" that flowered in the year 1791. "Bank bubbles, tontines, lotteries, monopolies, usury, gambling and swindling abound," said the New York Journal; "poverty in the country, luxury in the capitals, corruption and usurpation in the national councils." Hamilton's system had given the deepest stab to the hopes of the anti-Federalists, since it taught people to look to the Union rather than to the State. Internal taxes and import duties were paid to the United States; coin was minted by the United States; paper money issued by the United States; letters carried and delivered by the United States; and state debts assumed by the United States. All this had a tendency to break state attachments and state importance; and in striking back, Republican orators branded the reports of the Secretary of the Treasury as "dangerous to liberty," the assumption of debts as "a clever device for enslaving the people," and the whole fiscal system "a dishonest scheme." The failure and imprisonment of William Duer, until recently Hamilton's trusted assistant, followed by riots in New York City, gave colour to the charge, and, although the most bitter opponents of the great Federalist in no wise connected him with any corrupt transaction, yet in the spring of 1792 Hamilton, the friend and backer of Jay, was the most roundly abused man in the campaign.

The Federalists resented misrepresentation with misrepresentation. Clinton's use of patronage, his opposition to the Federal Constitution, and the impropriety of having a military governor in time of peace, objections left over from 1789, still figured as set pieces in rhetorical fireworks; but the great red light, burned at every meeting throughout the State, exposed Governor Clinton as secretly profiting by the sale of public lands. The Legislature of 1791 authorised the five state officers, acting as Commissioners of the Land Office, to sell unappropriated lands in such parcels and on such terms as they deemed expedient, and under this power 5,542,173 acres returned $1,030,433. Some of the land brought three shillings per acre, some two shillings six pence, some one shilling, but Alexander McComb picked up 3,635,200 acres at eight pence. McComb was a friend of Clinton. More than that, he was a real estate dealer and speculator. In the legislative investigation that followed, resolutions condemning the commissioners' conduct tangled up Clinton in a division of the profits, and sent McComb to jail. This was a sweet morsel for the Federalists. It mattered not that the Governor denied it; that McComb contradicted it; that no proof supported it; or that the Assembly acquitted him by a party vote of thirty-five to twenty; the story did effective campaign service, and lived to torture Aaron Burr, one of the commissioners, ten years afterward. Burr tried to escape responsibility by pleading absence when the contracts were made; but the question never ceased coming up—if absence included all the months of McComb's negotiations, what time did the Attorney-General give to public business?

It was a deep grief to Jay that the Livingstons opposed him. The Chancellor and Edward were his wife's cousins, Brockholst her brother. Brockholst had been Jay's private secretary at the embassy in Madrid, but now, to use a famous expression of that day, "the young man's head was on fire," and violence characterised his political feelings and conduct. Satirical letters falsely attributed to Jay fanned the sparks of the Livingston opposition into a bright blaze, and, although the Chief Justice denied the insinuation, the Chancellor gave battle with the enthusiasm of a new convert.

As one glances through the list of workers in the campaign of 1792, he is reminded that the juniors or beginners soon came to occupy higher and more influential positions than some of their elders and leaders. DeWitt Clinton, for instance, not yet in office, was soon to be in the Assembly, in the State Senate, and in the United States Senate—a greater force than any man of his time in New York, save Hamilton. James Kent had just entered the Assembly. As a student in Egbert Benson's office, his remarkable industry impressed clients and teacher, but when his voice sounded the praises of John Jay, few could have anticipated that this young man, small in stature, vivacious in speech, quick in action, with dark eyes and a swarthy complexion, was destined to become one of the most famous jurists in a century. Ambrose Spencer had not yet scored his first political honour, but his herculean frame and stately presence, with eyes and complexion darker than Kent's, are to be seen leading in every political contest for more than forty years.

There were also Smith Thompson, taught in the law by Chancellor Kent and tutored in politics by George Clinton, who was to follow the former Chief Justice and end his days on the United States Supreme bench; Joseph C. Yates, founder of Union College, and Samuel L. Mitchill, scientist and politician, who has been called the Franklin of New York. Younger than these, but equally alert, was Cadwallader A. Colden, grandson of the royal lieutenant-governor of Stamp Act days. He was now only twenty-two, just beginning at the bar, but destined to be the intimate friend of Robert Fulton, a famous leader of a famous bar, and a political chieftain of a distinguished career.[63]

At the election, the people gave Jay a majority of their votes; but at the count, a majority of the state canvassers gave Clinton the governorship. This was the first vicious party precedent established in the Empire State. It has had many successors at the polls, in the Legislature, and at the primaries, but none bolder and more harmful, or ruder and more outrageously wrong. Under the law, inspectors of election sealed the ballots, delivered them to the sheriff or his deputy, who conveyed them to the secretary of state. In Otsego County, Richard R. Smith's term as sheriff had expired, and the new sheriff had not yet qualified, but Smith delivered the ballots to a person specially deputised by him. Tioga's sheriff turned the ballots over to his deputy, who, being taken ill on the journey, handed them to a clerk for transmission. In Clinton the sheriff gave the votes to a man without deputation. No ballots were missing, no seals were broken, nor had their delivery been delayed for a moment. But as soon as it became known that these counties gave Jay a majority of about four hundred, quite enough to elect him, it was claimed that the votes had not been conveyed to the secretary of state by persons authorised to do so under the law, and the canvassers, voting as their party preferences dictated, ruled out the returns by a vote of seven to four in Clinton's favour. The discussion preceding this action, however, was so acrimonious and the alleged violation of law so technical, that the board agreed to refer the controversy to Rufus King and Aaron Burr, the United States senators.

Burr had many an uneasy hour. He preferred to avoid the responsibility, since an opinion might jeopardise his political interests. If he found for Clinton, his Federalist friends would take offence; if he antagonised Clinton, the anti-Federalists would cast him out. Thus far it had been his policy to keep in the background, directing others to act for him; now he must come out into the open. He temporised, delayed, sought suggestions of friends, and endeavoured to induce his colleague to join him in declining to act as a referee, but King saw no reason for avoiding an opinion, and in answering the question of the canvassers, he took the broad ground that an election law should be construed in furtherance of the right of suffrage. The act was for the protection of voters whose rights could not be jeopardised by the negligence or misconduct of an agent charged with the delivery of the ballots, nor by canvassers charged with their counting. It was preposterous to suppose that the sudden illness of a deputy, or the failure of an official to qualify, could disfranchise the voters of a whole county. If it were otherwise, then the foolish or intentional misconduct of a sheriff might at any time overturn the will of a majority. There was no pretence of wrong-doing. The ballots had been counted, sealed, and delivered to the secretary of state no less faithfully than if there had been a technical adherence to the strict letter of the law. He favoured canvassing Tioga's vote, therefore, although it was doubtful if a deputy sheriff could deputise a deputy, while the vote of Clinton should be canvassed because a sheriff may deputise by parol. As to Otsego, on which the election really turned, King held that Smith was sheriff until a successor qualified, if not in law, then in fact; and though such acts of a de facto officer as are voluntarily and exclusively beneficial to himself are void, those are valid that tend to the public utility.

Burr was uninfluenced by respect for suffrage. Being statutory law, it must be construed literally, not in spirit, or because of other rights involved. He agreed with his colleague as to the law governing the Clinton case; but following the letter of the act, he held that Tioga's votes ought not to be counted, since a deputy could not appoint a deputy. The Otsego ballots were also rejected because the right of a sheriff to hold over did not exist at common law; and as the New York statute did not authorise it, Smith's duties ceased at the end of his term; nor could he be an officer de facto, since he had accepted and exercised for one day the office of supervisor, which was incompatible with that of sheriff. In other words, Burr reduced the question of Jay's election to Smith's right to act, and to avoid the de facto right, so ably presented by Senator King, he relied upon Smith's service of a day as supervisor before receiving and forwarding the ballots, notwithstanding sheriffs invariably held over until their successors qualified. Seven of such cases had occurred in fifteen years, and never before had the right been seriously questioned. In one instance a hold-over sheriff had executed a criminal. When urged to appoint a sheriff for Otsego earlier in the year, Governor Clinton excused his delay because the old one could hold over.

After this decision, only Clinton himself could avert the judgment certain to be rendered by a partisan board. Nevertheless, the Governor remained silent. Thus, by a strict party vote of seven to four, the canvassers, omitting the three counties with four hundred majority in Jay's favour, returned 8,440 votes for Clinton and 8,332 for Jay. Then, to destroy all evidence of their shame, the ballots were burned, although the custom obtained of preserving them in the office of the secretary of state.[64]

News travelled slowly in those days. There were no telegrams, no reporters, no regular correspondents, no special editions to tell the morning reader what had happened the day before; but when it once became known that John Jay had been counted out, the people of the State were aroused to the wildest passion of rage, recalling the famous Tilden-Hayes controversy three-quarters of a century later. A returning board, it was claimed, had overturned the will of the people; and to the superheated excitement of the campaign, was added the fierce anger of an outraged party. Wild menaces were uttered, and the citizens of Otsego threatened an appeal to arms. "People are running in continually," wrote Mrs. Jay to her husband, "to vent their vexation. Senator King says he thinks Clinton as lawfully governor of Connecticut as of New York, but he knows of no redress."[65] Hamilton agreed with King, and counselled peaceful submission.

Meantime the Chief Justice was returning home from Vermont by way of Albany. At Lansingburgh the people met him, and from thence to New York public addresses and public dinners were followed with the roar of artillery and the shouts of the populace. "Though abuse of power may for a time deprive you and the citizens of their right," said one committee, "we trust the sacred flame of liberty is not so far extinguished in the bosoms of Americans as tamely to submit to the shackles of slavery, without at least a struggle to shake them off."[66] Citizens of New York met him eight miles from the city, and upon his arrival, "the friends of liberty" condemned the men who would deprive him of the high office "in contempt of the sacred voice of the people, in defiance of the Constitution, and in violation of the uniform practice and settled principles of law."[67]

During these days of excitement, Jay conducted himself with remarkable forbearance and dignity. It was the poise of Washington. "The reflection that the majority of electors were for me is a pleasing one," he wrote his wife; "that injustice has taken place does not surprise me, and I hope will not affect you very sensibly. The intelligence found me perfectly prepared for it. A few years more will put us all in the dust, and it will then be of more importance to me to have governed myself than to have governed the State."[68] This thought influenced his conduct throughout. When armed resistance seemed inevitable, he raised his voice in opposition to all feeling. "Every consideration of propriety forbids that difference in opinion respecting candidates should suspend or interrupt that natural good humour which harmonises society, and softens the asperities incident to human life and human affairs."[69] At a large dinner on the 4th of July, Jay gave the toast: "May the people always respect themselves, and remember what they owe to posterity;" but after he had retired, the banqueters let loose their tongues, drinking to "John Jay, Governor by voice of the people," and to "the Governor (of right) of the State of New York."

Clinton entered upon his sixth term as governor amidst vituperation and obloquy. He was known as the "Usurper," and in order to reduce him to a mere figurehead, the Federalists who controlled the Assembly, led by Josiah Ogden Hoffman, the brilliant New York lawyer, now proposed to choose a new Council of Appointment, although the term of the old Council had not yet expired. The Constitution provided that the Council should hold office one year, and that the Governor, with the advice of the Council, should appoint to office. Up to this time such had been the accepted practice. Nevertheless, the Federalists, having a majority of the Assembly, forced the election of a Council made up entirely of members of their own party, headed by Philip Schuyler, the veteran legislator and soldier, and then proceeded to nominate and confirm Egbert Benson as a judge of the Supreme Court. Clinton, as governor and a member of the Council, refused to nominate Benson, insisting that the exclusive right of nomination was vested in him. Here the matter should have ended under the Constitution as Jay interpreted it; but Schuyler held otherwise, claiming that the Council had a concurrent right to nominate. He went further, and decided that whenever the law omitted to limit the number of officers, the Council might do it, and whenever an officer must be commissioned annually, another might be put in his place at the expiration of his commission. This would give the Council power to increase at will the number of officials not otherwise limited by law, and to displace every anti-Federalist at the expiration of his commission.

Clinton argued that the governor, being charged under the Constitution with the execution of the laws, was vested with exclusive discretion as to the number of officers necessary to their execution, whereas, if left to one not responsible for such execution, too many or too few officials might be created. With respect to the continuation of an incumbent in office at the pleasure of the Council, "the Constitution did not intend," he said, "a capricious, arbitrary pleasure, but a sound discretion to be exercised for the promotion of the public good; that a contrary practice would deprive men of their offices because they have too much independence of spirit to support measures they suppose injurious to the community, and might induce others from undue attachment to office to sacrifice their integrity to improper considerations."[70] This was good reasoning and good prophecy; but his protests fell upon ears as deaf to a wise policy as did the protests of Jay's friends when the board of canvassers counted Jay out and Clinton in.

The action of the Council of Appointment was a stunning blow to Clinton. Under Jay's constitution, every officer in city, county, and State, civil and military, save governor, lieutenant-governor, members of the Legislature, and aldermen, could now be appointed by the Council regardless of the Governor; and already these appointments mounted up into hundreds. In 1821 they numbered over fifteen thousand. Thus, as if by magic, the Council was turned into a political machine. Under this arrangement, a party only needed a majority of the Assembly to elect a Council which made all appointments, and the control of appointments was sufficient to elect a majority of the Assembly. Thus it was an endless chain the moment the Council became a political machine, and it became a political machine the moment Philip Schuyler headed the Council of 1793.

This arbitrary proceeding led to twenty years of corrupt methods and political scandals. Schuyler's justification was probably the conviction that poetic justice required that Clinton, having become governor without right, should have his powers reduced to their lowest terms; but whatever the motive, his action was indefensible, and his reply that the Governor's practices did not correspond to his precepts fell for want of proof. Clinton had then been in office seventeen years, and, although he took good care to select members of his own party, only one case, and that a doubtful one, could be cited in support of the charge that appointments had been made solely for political purposes.

In a published address, on January 22, 1795, Governor Clinton declined to stand for re-election in the following April because of ill health and neglected private affairs. Included in this letter was the somewhat apocryphal statement that he withdrew from an office never solicited, which he had accepted with diffidence, and from which he should retire with pleasure. The reader who has followed the story of his career through the campaigns of 1789 and 1792 will scarcely believe him serious in this declaration, although he undoubtedly retired with pleasure. At the time of his withdrawal, he had an attack of inflammatory rheumatism, but he was neither a sick man nor an old one, being then in his fifty-fifth year, with twelve years of honourable public life still before him. It is likely the reason in the old rhyme, "He who fights and runs away, lives to fight another day," had more to do with his retirement than shattered health and crippled fortune. Defeat has never been regarded helpful to future political preferment, and this shrewd reader of the signs of the times, his ambition already fixed on higher honours and more exalted place, saw the coming political change in New York as clearly and unmistakably as an approaching storm announced itself in an increase of his rheumatic aches.

CHAPTER VII
RECOGNITION OF EARNEST MEN
1795-1800

With Clinton out of the race for governor in 1795, his party's weakness discovered itself in the selection of Chief Justice Robert Yates, Hamilton's coalition candidate in 1789. It was a makeshift nomination, since none cared to run after Clinton's declination sounded a note of defeat. Yates' passion for office led him into strange blunders. He seemed willing to become the candidate of any party, under any conditions, at any time, if only he could step into the official shoes of George Clinton. He was excusable in 1789, perhaps, when the way opened up a fair chance of success, but in 1795 his ambition subjected him to ridicule as well as to humiliation. It was said derisively that he was defeated, although every freeholder in the State had voted for him.

The Federalists were far from unanimous in their choice of John Jay. He had not yet returned from England, whither Washington had sent him in the preceding year to negotiate a treaty to recover, among other things, compensation for negroes who followed English troops across the Atlantic at the close of the war; to obtain a surrender of the Western military posts not yet evacuated; and to secure an article against impressments. It was believed that a storm of disapproval would greet his work, and the timid ones seriously questioned the expediency of his nomination. The submission of the treaty had already precipitated a crisis in the United States Senate, and while it might not be ratified and officially promulgated before election, grave danger existed of its clandestine publication by the press. Hamilton, however, insisted, and Jay became the nominee. "It had been so decreed from the beginning," wrote Egbert Benson.

The campaign that followed was featureless. Chief Justice Yates aroused no interest, and Chief Justice Jay was in England. From the outset, Jay's election was conceded; and a canvass of the votes showed that he had swept the State by a large majority. In 1789 Clinton received a majority of 489; in 1792 the canvassers gave him 108; but in 1795 Jay had 1589.[71]

What would have happened had the treaty been published before election, fills one with interested conjecture. Its disclosure on July 2, the day after Jay's inauguration, turned the applause of that joyous occasion into the most exasperating abuse. Such a sudden and tempestuous change in the popularity of a public official is unprecedented in the history of American politics. In a night the whole State was thrown into a ferment of intense excitement, the storm of vituperation seeming to centre in New York city. Jay was burned in effigy; Hamilton was struck in the face with a stone while defending Jay's work; a copy of the treaty was burned before the house of the British Minister; riot and mob violence held carnival everywhere. Party spirit never before, and never since, perhaps, ran so high. One effigy represented Jay as saying, while supporting a pair of scales, with the treaty on one side and a bag of gold on the other, "Come up to my price, and I will sell you my country." Chalked in large white letters on one of the principal streets in New York, appeared these words: "Damn John Jay! Damn every one that won't damn John Jay!! Damn every one that won't put lights in his windows and sit up all night damning John Jay!!!"[72] This revulsion of public sentiment was not exactly a tempest in a teapot, but it proved a storm of limited duration, the elections in the spring of 1796 showing decided legislative gains for the Federalists.

Hamilton divined the cause of the trouble. "There are three persons," he wrote,[73] "prominent in the public eye as the successor of the President—Mr. Adams, Mr. Jay, and Mr. Jefferson.... Mr. Jay has been repeatedly the object of attacks with the same view. His friends, as well as his enemies, anticipated that he could make no treaty which would not furnish weapons against him; and it were to have been ignorant of the indefatigable malice of his adversaries to have doubted that they would be seized with eagerness and wielded with dexterity. The peculiar circumstances which have attended the two last elections for governor of this State have been of a nature to give the utmost keenness to party animosity. It was impossible that Mr. Jay should be forgiven for his double, and, in the last instance, triumphant success; or that any promising opportunity of detaching from him the public confidence, should pass unimproved.... Trivial facts frequently throw light upon important designs. It is remarkable that in the toasts given on July 4, 1795, whenever there appears a direct or indirect censure of the treaty, it is pretty uniformly coupled with compliments to Mr. Jefferson, and to our late governor, Mr. Clinton, with an evident design to place those gentlemen in contrast to Mr. Jay, and, decrying him, to elevate them. No one can be blind to the finger of party spirit, visible in these and similar transactions. It indicates to us clearly one powerful source of opposition to the treaty."

The treaty was undoubtedly a disappointment to the country, and not greatly pleasing to Washington. Perhaps Jay said the best thing that could be said in its favour: "One more favourable was not attainable." The thing he was sent especially to do, he failed to accomplish, except the evacuation of the posts, and a concession as to the West Indian trade, which the Senate rejected. Nevertheless the country was greatly and permanently benefited. The treaty acquired extradition for criminals; it secured the collection of debts barred by the Revolution, amounting to ten million dollars; it established the principle that war should not again be a pretext for the confiscation of debts or for the annulment of contracts between individuals; and it avoided a war with England, for which the United States was never more unprepared. "As the first treaty negotiated under the new government," says John W. Foster, "it marked a distinct advance in international practice."[74] In a recent biography of Andrew Jackson, Professor Sumner says: "Jay's treaty was a masterpiece of diplomacy, considering the times and the circumstances of this country." Even the much-criticised commercial clause, "the entering wedge," as Jay called it, proved such a gain to America, that upon the breaking out of war in 1812, Lord Sheffield declared that England had "now a complete opportunity of getting rid of that most impolitic treaty of 1794, when Lord Grenville was so perfectly duped by Jay."[75]

John Jay's first term as governor was characteristically cautious and conservative. He began with observing the proprieties, gracefully declining the French Consul's invitation to a republican entertainment, and courageously remaining at his post during the yellow fever epidemic of 1795. With equal ease he settled the growing conflict between the severity of the past and the sympathy of the present, by changing the punishment in cases of ordinary felony, from death to imprisonment. Up to that time men might have been executed for stealing a few loaves of high-priced bread to relieve the sufferings of a hungry family. Under Jay's humane plea for mercy the death penalty was limited to treason, murder, and stealing from a church. A quarter of a century passed before Sir James Mackintosh succeeded in carrying a similar measure through the British Parliament.

In his first message Jay recommended neither the abolition of slavery, nor the discontinuance of official changes for political reasons, "since the best and most virtuous men," he said, "must, in the distribution of patronage, yield to the influence of party considerations." As the only important questions before him just then involved the freedom of slaves and reform in the civil service, his silence as to the one and his declaration as to the other were certainly sufficient to allay any suspicion that he was to become a radical reformer. He did recommend a legislative interpretation of the Constitution relating to the governor's exclusive right to nominate to office; but in the blandest and most complimentary words, the Legislature invited the Governor to let well enough alone. "The evidence of ability, integrity and patriotism," so the answer ran, "which has been invariably afforded by your conduct in the discharge of the variety of arduous and important trusts, authorise us to anticipate an administration conducive to the welfare of your constituents." This amiable answer betrayed the deft hand of Ambrose Spencer, who, to make it sweeter and more acceptable, moved the insertion of the word "invariably."[76] Thus ended the suggestion of a law that might have undone the mischief of Schuyler, and prevented the scandal and corrupt methods that obtained during the next two decades. At least, this is the thought of a later century, when civil service reform has sunk a tap-root into American soil, still frosty, perhaps, yet not wholly congealed as it seems to have been one hundred years ago.

Jay's administration might be called the reward days of earnest, able men, whose meritorious service became their passport to office. Upon the retirement in 1798 of Robert Yates and John Sloss Hobart from the Supreme bench, he appointed James Kent and Jacob Radcliff. If Jay had never done anything else, the appointment of Kent would immortalise him, just as the selection of John Marshall placed a halo about the head of President Adams. Kent, now thirty-five years old, a great lawyer and a strong partisan, had the conservatism of Jay, and held to the principles of Hamilton. He was making brilliant way in politics, showing himself an administrator, a debater, and a leader of consummate ability; but he steadily refused to withdraw from the professional path along which he was to move with such distinction. Until Kent's appearance, the administration of the law had been inefficient and unsatisfactory. Men of ability had occupied the bench; but the laborious and business methods which subsequently gave strength and character to the court, had not been applied. The custom of writing opinions in the most important cases did not then obtain, while the principles and foundation of the law were seldom explored. But Kent began at once, after a most laborious examination of the cases and the law, to bring the written opinions which enrich the reports of Caines and Johnson, to the consultations of the judges, thus setting an example to his associates, and opening the way for that admirable and orderly system of jurisprudence that has adorned the judiciary of New York for more than a century. The men of the older school had had their day. The court of Hobart was closed; the age of Kent had opened.

Radcliff, the other judicial appointee, was not a new name in 1798; but it was destined to become dearer to every lover of a chancery lawyer. He had a natural gift for chancery, and no natural inclination whatever for politics or the bench. So, after serving a single term in the Assembly, two years as an assistant attorney-general, and six years on the Supreme Court, he returned to the practice, to which he devoted the remaining forty years of his life, save when holding the office of mayor of New York in 1810, and again in 1815 during the brief retirement of DeWitt Clinton. Wherever he appeared, Radcliff's erect, dignified bearing and remarkably handsome face, illuminated with large eyes and a highly intellectual expression, marked him as a man of distinction. He set the custom of dictating bills in chancery to an amanuensis, doing it with such accuracy that a word had seldom to be changed. Of the same age as Kent, he must have been of great help to that distinguished jurist, had he continued with the court. While hovering somewhat uncertain between the bench and the bar, he removed to New York City, where the opportunities for one of his gifts soon settled the question.

Other appointments of Jay were equally satisfactory. The comptrollership of state, recently created, went to Samuel Jones in return for having patiently worked out this more perfect method of controlling and disbursing state funds. Ambrose Spencer became an assistant attorney-general, and the appointment of Rufus King as minister to England made room for the election of John Lawrence to the United States Senate. Lawrence had little claim, perhaps, to be entered in the class with Rufus King, since he was neither leader nor statesman; but he had been the faithful adjutant-general of Washington, and a steady, fearless supporter of Hamilton. Lawrence, an Englishman by birth, had settled in New York at an early period in life, and by his marriage to the daughter of Alexander McDougall, quickly came into conspicuous sympathy with the radical wing of the patriotic party. He will always be remembered in history as judge-advocate of the court that tried Major André. He held office almost continuously from 1775 until his death in 1810, serving eight years in the army, one in the State Senate, six in Congress, four as judge of the United States District Court, and four as a United States senator, closing his honourable career as president pro tem. of that body.

As a rebuke to Aaron Burr's snap game so successfully played in 1791, Philip Schuyler succeeded him in the United States Senate in 1797, an event that must have sweetened the closing years of the Revolutionary veteran. But Schuyler was now a sick man, and in January, 1798, he resigned the senatorial toga to others, upon whose shoulders it rested briefly, and possibly with less ease and grace. John Sloss Hobart wore it for three months. After him, for ten months, came William North, followed by James Watson, who, in turn, resigned in March, 1800. Thus, in the short period of thirty-six months, four men tasted the sweets of the exalted position so brilliantly filled by the erratic grandson of Jonathan Edwards. North and Watson were men of certain ability and certain gifts. Both had been soldiers. North had followed Arnold to Quebec, had charged with his regiment at Monmouth, had served with credit upon Baron Steuben's staff,[77] and had acquitted himself with honour at Yorktown. He belonged to that coterie of brilliant young men, noted for bravery and endurance, who quickly found favour with the fighting generals of the Revolution. Watson resigned his captaincy in 1777, and engaged successfully in mercantile pursuits, subsequently entering the Assembly with North, the former becoming speaker in 1794 and the latter in 1795 and 1796. At the time of North's election to the United States Senate, Watson was a member of the State Senate. Like Lawrence, both were perfervid Federalists, zealous champions of Hamilton, and profound believers in the wisdom of minimising, if not abrogating, the rights of States.

Watson's resignation from the United States Senate enabled the Federalists to elect Gouverneur Morris just before the political change in 1800 swept them from power. Morris was a fit successor to Schuyler. His family had belonged to the State for a century and a half. The name stood for tradition and conservatism—an embodiment of the past amid the changes of revolution. His home near Harlaem, an estate of three thousand acres, with a prospect of intermingled islands and water, stretching to the Sound, which had been purchased by a great-grandfather in the middle of the preceding century, reflected the substantial character of its founder, a distinguished officer in Cromwell's army.

Gouverneur was the child of his father's second marriage. The family,[78] especially the older children, of whom Richard, chief justice of the State, was the third and youngest boy, resented the union, making Gouverneur's position resemble that of Joseph among his brethren. Twenty-two years intervened between him and Richard. Before the former left the schoolroom, the latter had succeeded his father as judge of the vice-admiralty; but as for being of any assistance to the fatherless lad Richard might as well have been vice-admiral of the blue, sailing the seas. There would be something pathetic in this estrangement, if independence and self-reliance had not dominated the youngest son as well as the older heirs of this noble family. Lewis, the eldest, served in the Continental Congress and became a signer of the Declaration of Independence, while Staats Long, the second son, wandered to England, married the Countess of Gordon, became a general in the British army, and a member of Parliament in the days of Lord North and Charles James Fox. It was a strange coincidence, one brother resisting Parliament in Congress, the other resisting Congress in Parliament.

The influences surrounding Gouverneur's youth were decidedly Tory. His mother warmly adhered to George the Third; his professors at King's taught loyalty to the Crown; his distinguished tutor in the law, William Smith, New York's Tory historian, magnified the work and the strength of Parliament; while his associates, always his mother's welcomed guests at Morrisania, were British officers, who talked of Wolfe and his glorious struggles for England. But there never was a moment from the time Gouverneur Morris entered the Provincial Congress of New York on May 22, 1775, at the age of twenty-three, that he was not conspicuously and brilliantly active in the cause of America. Whenever or wherever a Revolutionary body was organised, or for whatever purpose, Congress, Convention, or Committee of Safety, he became a member of it. Six years younger than Jay, and six years older than Hamilton, he seemed to complete that remarkable New York trio, so fertile in mental resources and so successful in achievement. He did not, like Jay, outline a constitution, but he believed, with Jay, in balancing wealth against numbers, and in contending for the protection of the rights of property against the spirit of democracy. It is interesting to study these young men, so different in temperament, yet thinking alike and acting together for a quarter of a century—Jay, gentle and modest; Hamilton, impetuous and imperious; Morris, self-confident and conceited; but on all essential matters of state, standing together like a tripod, firm and invincible. In his distrust of western influences, however, Morris was more conservative than Jay or Hamilton. He was broad and liberal toward the original thirteen States, but he wanted to subordinate the balance of the country to their control. He regarded the people who might seek homes west of the Alleghanies with something of the suspicion Jay entertained for the propertyless citizens of New York. The day would come, he believed, when those untutored, backwoods settlers would outnumber their brethren on the Atlantic coast, and he desired some provision in the Constitution which would permit the minority to rule such a majority. If these views shrivelled his statesmanship, it may be said to his credit that they discovered a prophetic gift most uncommon in those days, giving him the power to see a great empire of people in the fertile valley of the Mississippi and its tributaries.[79] Fifteen years later Robert R. Livingston expressed the belief that not in a century would a white man cross the Father of Waters.

Into the life of Jay's peaceful administration came another interesting character, the champion of every project known to the inventive genius of his day. We shall hear much of Samuel Latham Mitchill during the next three decades. He was now thirty-five years old, a sort of universal eccentric genius, already known as philosopher, scientist, teacher, and critic, a professor in Columbia, the friend of Joseph Priestley, the author of scientific essays, and the first in America to make mineralogical explorations. Perhaps if he had worked in fewer fields he might have won greater renown, making his name familiar to the general student of our own time; but he belonged to an order of intellect far higher than most of his associates, filling the books with his doings and sayings. Although his influence, even among specialists, has probably faded now, he inspired the scientific thought of his time, and established societies which still exist, and whose history, up to the time of his death in 1831, was largely his own. Mitchill belonged to the Republican party because it was the party of Jefferson, and he followed Jefferson because Jefferson was a philosopher. For the same reason he became the personal friend of Chancellor Livingston, with whom, among other things, he founded the Society for the Promotion of Agriculture, Manufactures, and the Useful Arts. It was said of Mitchill that "he was equally at home in studying the geology of Niagara, or the anatomy of an egg; in offering suggestions as to the angle of a windmill, or the shape of a gridiron; in deciphering a Babylonian brick, or in advising how to apply steam to navigation."

Mitchill became a member of the Assembly in 1798, and it was his interest in the experiments then being made of applying steam to navigation, that led him to introduce a bill repealing the act of 1787, giving John Fitch the sole right to use steamboats on the Hudson, and granting the privilege to Chancellor Livingston for a term of twenty years, provided that within a year he should build a boat of twenty tons capacity and propel it by steam at a speed of four miles an hour. John Fitch had disappeared, and with him his idea of applying steam to paddles. He had fitted a steam engine of his own invention into a ferry-boat of his own construction, and for a whole summer this creation of an uneducated genius had been seen by the people of Philadelphia moving steadily against wind and tide; but money gave out, the experiment was unsatisfactory, and Fitch wandered to the banks of the Ohio, where opium helped him end his life in an obscure Kentucky inn, while his steamboat rotted on the shores of the Delaware. Then John Stevens of Hoboken began a series of experiments in 1791, trying elliptical paddles, smoke-jack wheels, and other ingenious contrivances, which soon found the oblivion of Fitch's inventions. Subsequently Rumsey, another ingenious American, sought with no better success to drive a boat by expelling water from the stern. When it was announced that the great Chancellor also had a scheme, it is not surprising, perhaps, that the wags of the Assembly ridiculed the project as idle and whimsical. "Imagine a boat," said one, "trying to propel itself by squirting water through its stern." Another spoke of it as "an application of the skunk principle." Ezra L'Hommedieu, then a state senator, declared that Livingston's "steamboat bill" was a standing subject of ridicule throughout the entire session.

But there were others than legislators who made sport of these apparently visionary projects to settle the value of steam as a locomotive power. Benjamin H. Latrobe, the most eminent engineer in America, did not hesitate to overwhelm such inventions with objections that, in his opinion, could never be overcome. "There are indeed general objections to the use of the steam engine for impelling boats," he wrote, in 1803, "from which no particular mode of application can be free. These are, first, the weight of the engine and of the fuel; second, the large space it occupies; third, the tendency of its action to rack the vessel and render it leaky; fourth, the expense of maintenance; fifth, the irregularity of its motion and the motion of the water in the boiler and cistern, and of the fuel-vessel in rough water; sixth, the difficulty arising from the liability of the paddles or oars to break, if light, and from the weight, if made strong. Perhaps some of the objections against it may be obviated. That founded on the expense and weight of the fuel may not for some years exist in the Mississippi, where there is a redundance of wood on the banks; but the cutting and loading will be almost as great an evil."[80]

Mitchill, however, would not be suppressed by the fun-making legislators or the reasoning of a conservative engineer. "I had to encounter all their jokes and the whole of their logic," he wrote a friend. His bill finally became a law, and Livingston, with the help of the Doctor, placed a horizontal wheel in a well in the bottom and centre of a boat, which propelled the water through an aperture in the stern. The small engine, however, having an eighteen-inch cylinder and three feet stroke, could obtain a speed of only three miles an hour, and finding that the loss of power did not compensate for the encumbrance of external wheels and the action of the waves, which he hoped to escape, Livingston relinquished the plan. Four years later, however, the Chancellor's money and Robert Fulton's genius were to enrich the world with a discovery that has immortalised Fulton and placed Livingston's name among the patrons of the greatest inventors.

CHAPTER VIII
OVERTHROW OF THE FEDERALISTS
1798-1800

It is difficult to select a more popular or satisfactory administration than was Jay's first three years as governor. Opposition growing out of his famous treaty had entirely subsided, salutary changes in laws comforted the people, and with Hamilton's financial system, then thoroughly understood and appreciated, came unprecedented good times. To all appearances, therefore, Jay's re-election in 1798 seemed assured by an increased majority, and the announcement that Chancellor Livingston was a voluntary rival proved something of a political shock.[81] For many years the relations between Jay and Livingston were intimate. They had been partners in the law, associates in the Council of Revision, colleagues in Congress, co-workers in the formation of a state constitution, and companions in the Poughkeepsie convention. Jay had succeeded Livingston in 1784 as secretary of foreign affairs under the Confederation, and while the charming Mrs. Jay was giving her now historic dinners and suppers at 133 Broadway, her cousin, Robert R. Livingston, of No. 3 Broadway, was among her most distinguished guests. In her home Livingston made those arrangements with Hamilton and Jay, the Morrises and the Schuylers, that resulted in the overthrow of Governor Clinton and his supporters in the convention which ratified the Federal Constitution.

But after Washington's inauguration, and Jay's appointment as chief justice of the United States Supreme Court, the Chancellor had been as intense, if not as violent an opponent of Federalism as Brockholst Livingston. In their criticism of Jay's treaty these two cousins had been especially bitter. The Chancellor attacked it as "Cato," Brockholst as "Decius;" the one spoke against it on the platform with Aaron Burr, the other voluntarily joined the mob—if he did not actually throw the stone—that wounded Hamilton; while the Chancellor saw a copy of the treaty slowly destroyed at Bowling Green, Brockholst coolly witnessed its distinguished author burned in effigy "in the Fields." Relationship did not spare John Jay. Cousin and brother-in-law had the "love frenzy for France," which finally culminated in celebrating the ninth anniversary of the treaty of alliance between France and America, at which Brockholst became proudly eloquent, and the Chancellor most happy in the felicity of an historic toast: "May the present coolness between France and America produce, like the quarrels of lovers, a renewal of love."

Chancellor Livingston was now in the fifty-first year of his age, tall and handsome, with an abundance of hair already turning gray, which fell in ringlets over a square high forehead, lending a certain dignity that made him appear as great in private life as he was when gowned and throned in his important office.[82] In the estimation of his contemporaries he was one of the most gifted men of his time, and the judgment of a later age has not reversed their decision. He added learning to great natural ability, and brilliancy to profound thought; and although so deaf as to make communication with him difficult, he nearly concealed the defect by his remarkable eloquence and conversational gifts. Benjamin Franklin called him "the Cicero of America." His love for the beautiful attracted Edmund Burke. It is doubtful if he had a superior in the State in the knowledge of history and the classics, and in the study of science Samuel L. Mitchill alone stood above him. He lacked the creative genius of Hamilton, the prescient gifts of Jay, and the skill of Burr to marshal men for selfish purposes, but he was at home in debate with the ablest men of his time, a master of sarcasm, of trenchant wit, and of felicitous rhetoric.

Livingston's candidacy for governor was clearly a dash for the Presidency. He reasoned, as every ambitious New York statesman has reasoned from that day to this, that if he could carry the State in an off year, he would be needed in a presidential year. This reasoning reduces the governorship to a sort of spring-board from which to vault into the White House, and, although only one man in a century has performed the feat, it has always figured as a popular and potent factor in the settlement of political nominations. George Clinton thought promotion would come to him, and Hamilton inspired Jay with a similar notion, although it is doubtful if the people ever seriously considered the candidacy of either; but Livingston, sanguine of better treatment, was willing voluntarily to withdraw from the professional path along which he had moved to great distinction, staking more than he had a right to stake on success. In his reckoning, as the sequel showed, he miscalculated the popularity of Jay as much as Hamilton did that of George Clinton in 1789.

The Chancellor undoubtedly believed the tide of Federalism, which had been steadily rising for six years, was about to ebb. There were sporadic indications of it. Perhaps Livingston thought it had already turned, since Republicans had recently won several significant elections. Two years before DeWitt Clinton and his associates had suffered defeat in a city which now returned four assemblymen and one senator with an average Republican majority of more than one thousand. This indicated that the constant talk of monarchical tendencies, of Hamilton's centralising measures, and of the court customs introduced by Washington and followed by Adams, was beginning to influence the timid into voting with Republicans.

But counteracting influences were also at work, which Livingston, in his zeal for political honours, possibly did not observe. New England Federalists, attracted by the fertile valleys of the Hudson and the Mohawk, had filled the western district, and were now holding it faithful to the party of Jay and Hamilton. Just at this time, too, Federalists were bound to be strengthened by the insulting treatment of American envoys sent to France to restore friendly intercourse between the two republics. President Adams' message, based upon their correspondence, asserted that nothing could be accomplished "on terms compatible with the safety, honour, and essential interests of the United States," and advised that immediate steps be taken for the national defence. What the President had withheld for prudential reasons, the public did not know; but it knew that the Cabinet favoured an immediate declaration of war, and that the friends of the Administration in Congress were preparing for such an event. This of itself should have taken Livingston out of the gubernatorial contest; for if war were declared before the April election, the result would assuredly be as disastrous to him as the publication of Jay's treaty in April, 1795, would have been hurtful to the Federalists. But Chancellor Livingston, following the belief of his party that France did not intend to go to war with America, accepted what he had been seeking for months, and entered the campaign with high hopes.

Jay had intended retiring from public life at the close of his first term as governor.[83] For a quarter of a century he had been looking forward to a release from the cares of office, and to the quiet of his country home in Westchester; but "the indignities which France was at that time heaping upon his country," says William Jay, his son and biographer, "and the probability that they would soon lead to war, forbade him to consult his personal gratification."[84] On the 6th of March, therefore, he accepted renomination on a ticket with Stephen Van Rensselaer for lieutenant-governor.

It is significant that the anti-Federalists failed to nominate a lieutenant-governor on the ticket with Livingston. Stephen Van Rensselaer was a Federalist of the old school, a brother-in-law of Hamilton, and a vigorous supporter of his party. It is difficult to accept the theory that none of his opponents wanted the place; it is easier to believe that under existing conditions no one of sufficient prominence cared to make the race, especially after President Adams had published the correspondence of the American envoys, disclosing Talleyrand's demand for $240,000 as a gift and $6,000,000 as a loan, with the threat that in the event of failure to comply, "steps will be taken immediately to ravage the coast of the United States by French frigates from St. Domingo." The display of such despicable greed, coupled with the menace, acted very much as the fire of a file of British soldiers did in Boston in 1770, and sent the indignant and eloquent reply of Charles C. Pinckney, then minister to France, ringing throughout the country—"Millions for defence, but not a cent for tribute." Within four weeks Congress authorised the establishment of a navy department, the construction of ten war vessels, the recapture of American ships unlawfully seized, the purchase of cannon, arms, and military stores, and the raising of a provisional army of ten thousand, with the acceptance of militia volunteers. The French tri-colour gave place to the black cockade, a symbol of patriotism in Revolutionary days, and "Hail Columbia," then first published and set to the "President's March," was sung to the wildest delight of American audiences in theatres and churches.

In the midst of this excitement occurred the election for governor. The outcome was a decided change, sending Jay's majority up to 2380.[85] It is not easy to estimate how much of this result was influenced by the rising war cloud, and how much is to be credited to the individuality of the candidates. Both probably entered into the equation. But the fact that Jay carried legislative districts in which Republicans sent DeWitt Clinton and Ambrose Spencer to the Senate, would indicate that confidence in Jay, if not dislike of Livingston, had been the principal factor in this sweeping victory. "The result of this election terminated, as was foreseen," wrote William P. Van Ness, four years later, "in the defeat and mortification of Mr. Livingston, and confirmed the conviction of the party, that the people had no confidence in his political integrity, and had been disgusted by his unwarrantable expectations. His want of popularity was so well known that nothing could have induced this inexpedient measure, but a desire to show the futility of his pretensions, and thus in future avoid his hitherto unceasing importunities."[86]

Livingston's search for distinction in the political field seems to have resulted in unhappiness. The distinguished ability displayed as chancellor followed him to the end, but the joy of public life vanished when he entered the domain of partisan politics. Had he possessed those qualities of leadership that bind party and friends by ties of unflinching services, he might have reaped the reward his ambition so ardently craved; but his peculiar temper unfitted him for such a career. Jealous, fretful, sensitive, and suspicious, he was as restless as his eloquence was dazzling, and, although generous to the poor, his political methods savoured of selfishness, making enemies, divorcing friends, and darkening his pathway with gathering clouds.

The story of John Jay's second term is not all a record of success. Strenuous statesmen, catching the contagion of excitement growing out of the war news from France, formed themselves into clubs, made eloquent addresses, and cheered John Adams and his readiness to fight rather than pay tribute, while the Legislature, in extra session, responded to Jay's patriotic appeal by unanimously pledging the President the support of the State, and making appropriations for the repair of fortifications and the purchase of munitions of war. From all indications, the Federalists seemed certain to continue in power for the next decade, since the more their opponents sympathised with the French, the stronger became the sentiment against them. If ever there was a period in the history of the United States when the opposite party should have been encouraged to talk, and to talk loudly and saucily, it was in the summer of 1798, when the American people had waked up to the insulting treatment accorded their envoys in France; but the Federalist leaders, horrified by the bloody record of the French Revolution, seemed to cultivate an increasing distrust of the common people, whom they now sought to repress by the historic measures known as the Naturalisation Act of June 18, 1798, the Alien Act of June 25, and the Sedition Act of July 14.

The briefest recital of the purpose of these laws is sufficient to prove the folly of the administration that fathered them, and when one considers the possible lengths to which an official, representing the President, might go if instigated by private or party revenge, Edward Livingston's declaration that they "would have disgraced the age of Gothic barbarity" does not seem too strong.[87] Under the Alien Act persons not citizens of the United States could be summarily banished at the sole discretion of the President, without guilt or even accusation, thus jeopardising the liberty and business of the most peaceable and well-disposed foreigner. Under the Act of Sedition a citizen could be dragged from his bed at night and taken hundreds of miles from home to be tried for circulating a petition asking that these laws be repealed. The intended effect was to weed out the foreign-born and crush political opponents, and, the better to accomplish this purpose, the Alien Act set aside trial by jury, and the Sedition Act transferred prosecutions from state courts to federal tribunals.

Governor Jay approved these extreme measures because of alleged secret combinations in the interest of the French; and, although no proof of their existence appeared except in the unsupported statements of the press, he submitted to the Legislature, in January, 1799, several amendments to the Federal Constitution, proposed by Massachusetts, increasing the disability of foreigners, and otherwise limiting their rights to citizenship. The Legislature, still strongly Federal in both its branches, did not take kindly to the amendments, and the Assembly rejected them by the surprising vote of sixty-two to thirty-eight. Then came up the famous Kentucky and Virginia resolutions. The Virginia resolves, drafted by Madison and passed by the Virginia Legislature, pronounced the Alien and Sedition laws "palpable and alarming infractions of the Constitution;" the Kentucky resolutions, drafted by Jefferson, declared each act to be "not law, but altogether void and of no force." This was nullification, and the States north of the Potomac hastened to disavow any such doctrine, although the vote in the New York Assembly came perilously near indorsing it.

The discussion of these measures gave opportunity for the public opening of a great career in New York legislation—a career that was to continue into the years made memorable by Martin Van Buren and William L. Marcy. The record of New York party politics for forty years is a record of long and brilliant contests in which Erastus Root, if not a recognised party chieftain, was one of the ablest lieutenants that marshalled on the field of combat. He was a man of gigantic frame, scholarly and much given to letters, and, although somewhat uncouth in manner and rough in speech, his forceful logic, coupled with keen wit and biting sarcasm, made him a dreaded opponent and a welcomed ally. He resembled Hamilton in his independence, relying less upon organisation and more upon the strength of his personality, yet shrewdly holding close relations with those whose careful management and adroit manipulation of the spoils kept men in line whatever the policy it seemed expedient to adopt. For eleven years he served in the Assembly, and thrice became speaker; for eight years he served in the Senate, and twice became its president; for twelve years he served in the lower house of Congress, and once became lieutenant-governor. Wherever he served, he was recognised as a master, not always consistent, but always earnest, eloquent, and popular, fighting relentlessly and tirelessly, and compelling respect even when unsuccessful.

Just now Root was an ardent admirer of Aaron Burr and a bitter opponent of Alexander Hamilton. He was only twenty-six years old. During the contest over the Federal Constitution he was a leader in boyish sports at his Connecticut home, thinking more of the next wrestling match and the girl he should escort from the lyceum than of the character of the constitution under which he should live; but he came to the Assembly in 1798 a staunch supporter of republicanism, believing that Federalists should give place to men inclined to trust the people with larger power, and in this spirit he led the debate against the Alien and Sedition laws with such brilliancy that he leaped into prominence at a single bound. Freedom and fearlessness characterised the work of this young orator, singling him out as the people's champion, and giving him the confidence of five thousand "Wild Irishmen," as Otis called them, who had sought America as an asylum for the oppressed of all nations. Unrestrained by precedent and unruled by fear for the future, he spoke with confidence to a people whom he delighted with the breadth and liberality of his views, lifting them onto heights from which they had never before surveyed their political rights.

In the debate in the Assembly on the indorsement of the Kentucky resolutions Root maintained with great force the right of the people's representatives in the Legislature to express an opinion upon an act of Congress, however solemn, and he ridiculed the argument that questions limited to the judiciary were beyond the jurisdiction of any other body of men to criticise and condemn. This touched a popular chord, and if the mere expression of an opinion by the Assembly had been the real question at issue, young Root might have carried his point as he did the fight against the amendments proposed by Massachusetts. But there was one question Root did not successfully meet. Although Jefferson's eighth and ninth resolutions—declaring that whenever the general government assumed powers not delegated, "a nullification of the act is the rightful remedy" of every State—had been stricken out, the dangerous doctrine was still present in the preamble, making it apparent to the friends of the Constitution that the promulgation of such a monstrous heresy would be worse than the acts sought to be annulled. It is not clear that Root's understanding of these resolutions went so far; for the question discussed by him concerned only the right of the Legislature to express an opinion respecting the wisdom or unwisdom of an act of Congress. Nor does it appear that he favoured what afterward became known as "nullification;" for it is certain that when, thirty-four years later, the doctrine came up again under John C. Calhoun's leadership, Erastus Root, then in Congress, struck at it as he would at the head of a viper, becoming the fearless expounder of principles which civil war permanently established.

While young Root was leading the debate in the Assembly, Ambrose Spencer led it in the Senate. Spencer's apostacy produced a profound sensation in political circles. He had given no intimation of a change of political principles. Although still a young man, barely thirty-three, he had ranked among the foremost leaders of the Federalist party, having been honoured as an assistant attorney-general, a state senator, a member of the Council of Appointment, a friend of Hamilton, and the confidential adviser of Jay. The latter's heart might well sink within him to be abandoned by such a colleague at a time when the stability of the Union was insidiously attacked; nor ought Spencer to have been surprised that public rumour immediately set to work to find some reason for his change less simple and less honest, perhaps, than a dislike of the Federalist policy. Various causes have been given for his mysterious behaviour. Some thought him eager for a high mark of presidential favour, possibly a mission abroad, which was not warmly advocated by Hamilton; others believed that the bitter quarrel between Adams and Hamilton influenced him to desert a sinking party; but the rumour generally accepted by the Federalists ascribed it to his failure to become state comptroller in place of Samuel Jones, an office which he sought. It was recalled that shortly after Jones' appointment, Spencer raised the question, with some show of bitterness, that Jones' seat in the Senate should be declared vacant.

Spencer denied the charges with expletives and with emphasis, treating the accusations as a calumny, and insisting that his change of principles occurred in the spring of 1798 before his re-election as senator. This antedated the alien and sedition measures, but not the appointment of Samuel Jones, making his conversion contemporary with the candidacy for governor of Chancellor Livingston, to whom he was related. It is not unlikely that he shared Livingston's confidence in an election and thought it a good time to join the party of his relative; but whether his change was a matter of principle, of self-interest, or of resentment, it bitterly stung the Federalists, who did not cease to assail him as a turncoat for the flesh-pots.[88]

The début of the brilliant Root and the St. Paul-like conversion of Ambrose Spencer were not, however, needed to overthrow a party responsible for the famous alien and sedition laws. No one has ever yet successfully defended this hasty, ill-considered legislation, nor has any one ever admitted responsibility for it, except President Adams who approved it, and who, up to the last moment of his long life, contended that it was "constitutional and salutary, if not necessary." President Adams had, indeed, refrained from using the power so lavishly given him; but rash subordinates listened to the dictate of unwise party leaders. The ridiculous character of these prosecutions is illustrated by a fine of one hundred dollars because one defendant wished that the wadding used in a salute to John Adams had lodged in the ample part of the President's trousers.

But the sedition law had a more serious enemy than rash subordinates. John Armstrong, author of the celebrated "Newburgh Letters," and until recently a Federalist, wrote a vitriolic petition for its repeal, which Jedediah Peck circulated for signatures. This incited the indiscreet and excitable Judge Cooper, father of the distinguished novelist, to begin a prosecution; and upon his complaint, the United States marshal, armed with a bench-warrant, carried off Peck to New York City for trial. It is two hundred miles from Cooperstown to the mouth of the Hudson, and in the spring of 1800 the marshal and his prisoner were five days on the way. The newspapers reported Peck as "taken from his bed at midnight, manacled, and dragged from his home," because he dared ask his neighbours to petition Congress to repeal an offensive law. "The rule of George Third," declared the press, "was gracious and loving compared to such tyranny." In the wildest delirium of revolutionary days, when patriots were refusing to drink tea, and feeding it to the fishes, New York had not been more deeply stirred than now. "A hundred missionaries in the cause of democracy, stationed between New York and Cooperstown," says Hammond, the historian, "could not have done so much for the Republican cause as this journey of Jedediah Peck from Otsego to the capital of the State. It was nothing less than the public exhibition of a suffering martyr for the freedom of speech and the press, and for the right of petition."[89]

This was the political condition when Aaron Burr, in the spring of 1800, undertook to gain twelve electoral votes for the Republicans by carrying the Legislature of New York. It required seventy electoral votes to choose a President, and outside of New York the anti-Federalists could count sixty-one. The capture of this State, therefore, would give them a safe majority. Without advertising his purposes, Burr introduced the sly methods that characterised his former campaigns, beginning with the selection of a ticket that would commend itself to all, and ending with an organisation that would do credit to the management of the later-day chiefs of Tammany. To avoid the already growing rivalry between the Clinton and Livingston factions, George Clinton and Brockholst Livingston headed the ticket, followed by Horatio Gates of Revolutionary fame, John Broome, soon to be lieutenant-governor, Samuel Osgood, for two years Washington's postmaster-general, John Swartout, already known for his vigorous record in the Assembly, and others equally acceptable. Burr himself stood for the county of Orange. For the first time in the history of political campaigning, too, local managers prepared lists of voters, canvassed wards by streets, held meetings throughout the city, and introduced other methods of organisation common enough nowadays, but decidedly novel then.

Hamilton was alive to the importance of the April election, but scarcely responsible for the critical character of the situation. He had not approved the alien and sedition measures, nor did he commit himself to the persecuting policy sanctioned by most Federal leaders, and although he favoured suppressing newspaper libels against the government, he was himself alien-born, and of a mind too broad not to understand the danger of arousing foreign-born citizens against his party on lines of national sentiment. "If we make no false step," he wrote Oliver Wolcott, "we shall be essentially united, but if we push things to extremes, we shall then give to faction body and solidity."[90] It was hasty United States attorneys and indiscreet local politicians rather than the greatest of the Federal leaders, who gave "to faction body and solidity."

Hamilton threw himself with energy into the desperate fight. For four days, from April 29 to May 2, while the polls were open, he visited every voting precinct, appealing to the public in his wonderfully persuasive and captivating manner. On several occasions Burr and Hamilton met, and it was afterward recalled that courtesy characterised the conduct of each toward the other, one champion waiting while the other took his turn. Rarely if ever in the history of the country have two men of such ability and astuteness participated in a local canvass. The rivalry was all the more exciting because it was a rivalry of styles as well as of capacities. Burr was smooth, polished, concise, never diffuse or declamatory, always serious and impressive. If we may accept contemporary judgment, he was a good speaker whom everybody was curious to hear, and from whom no one turned away in disappointment. On the other hand, Hamilton was an acknowledged orator, diffuse, ornate, full of metaphor, with flashes of poetical genius, revelling in exuberant strength, and endowed with a gift of argumentative eloquence which appealed to the intellect and the feelings at the same time. Erastus Root says Hamilton's words were so well chosen, and his sentences so finely formed into a swelling current, that the hearer would be captivated if not convinced, while Burr's arguments were generally methodised and compact. To this Root added a judgment, after thirty years' experience in public life at Washington and in New York, that "they were much the greatest men in the State, and perhaps the greatest men in the United States."

When the polls closed the Republicans had carried the Legislature by twenty-two majority on joint ballot. This secured to them the election of the needed twelve presidential electors. To recover their loss the Federalists now clamoured for a change in the law transferring the election of presidential electors from the Legislature to districts created for that purpose. Such an amendment would give the Federalists six of the twelve electors.

This was Hamilton's plan. In an earnest plea he urged Jay to convene the Legislature in extraordinary session for this purpose. "The anti-Federal party," he wrote to the Governor, "is a composition indeed of very incongruous materials, but all tending to mischief; some of them to the overthrow of the government by stripping it of its due energies; others of them by revolutionising it after the manner of Bonaparte. The government must not be confided to the custody of its enemies, and, although the measure proposed is open to objection, a popular government cannot stand if one party calls to its aid all the resources which vice can give, and the other, however pressing the emergency, feels itself obliged to confine itself within the ordinary forms of delicacy and decorum."[91]

Jay's response to Hamilton's proposal is not of record, but some time afterward the great Federalist's letter was found carefully filed among the papers in the public archives, bearing an indorsement in the Governor's handwriting: "This is a measure for party purposes which I think it would not become me to adopt."

The sincerity of Jay's action has been doubted. He was about to retire from public life, it was said, with no political future before him, and with that courage which inspires a man under such circumstances, he declined to act. But Jay's treatment of Hamilton's suggestion stands out conspicuously as his best judgment at the most trying moment in a long and eventful life. Jay was a stalwart Federalist. He had supported Washington and Hamilton in the making of a federal constitution; he had approved the alien and sedition laws; he had favourably reported to the Legislature the proposed amendments of Massachusetts, limiting service in Congress to native-born citizens; he regarded the advent of Jefferson and his ideas with as much alarm as Hamilton, and he knew as well as Hamilton that the adoption of the district plan of choosing electors would probably defeat the Virginian; but to call an extra session of the Legislature for the purpose indicated by Hamilton, would defeat the expressed will of the people as much as the action of the state canvassers defeated it in 1792. Should he follow such a precedent and save his party, perhaps his country, from the dire ills so vividly portrayed by Hamilton? The responsibility was upon him, not upon Hamilton, and he wisely refused to do what the people of the State had so generally and properly condemned in the canvassers.

Hamilton's proposition naturally provoked the indignation of his opponents, and later writers have used it as a text for unlimited vituperation; but if one may judge from what happened and continued to happen during the next three decades, not a governor who followed Jay in those eventful years would have declined under similar circumstances to concur in Hamilton's suggestion. It was undoubtedly a desperate proposal, but it was squarely in line with the practice of party leaders of that day. George Clinton countenanced, if he did not absolutely advise, the deliberate disfranchisement of hundreds of voters in 1792 that he might continue governor. A few years later, in 1816, methods quite as disreputable and unscrupulous were practised, that Republicans might continue to control the Council of Appointment. Hamilton's suggestion involved no concealment, as in the case of the Manhattan Bank, which Jay approved; no violation of law, as in the Otsego election case, which Clinton approved; no deliberate fraud, as in the Allen-Fellows case, which Tompkins approved. All this does not lessen the wrong involved in Hamilton's proposed violation of moral ethics, but it places the suggestion in the environment to which it properly belongs, making it appear no worse if no better than the political practices of that day.

CHAPTER IX
MISTAKES OF HAMILTON AND BURR
1800

The ten months following the Republican triumph in New York on May 2, 1800, were fateful ones for Hamilton and Burr. It is not easy to suggest the greater sufferer, Burr with his victory, or Hamilton with his defeat. Hamilton's bold expedients began at once; Burr's desperate schemes waited until after the election in November; but when the conflict was over, the political influence of each had ebbed like water in a bay after a tidal wave. Although Jay's refusal to reconvene the old Legislature in extra session surprised Hamilton as much as the Republican victory itself, the great Federalist did not despair. He still thought it possible to throw the election of President into the House of Representatives, and to that end he wrote his friends to give equal support to John Adams and Charles C. Pinckney, the candidates of the Federal party. "This is the only thing," he said, "that can possibly save us from the fangs of Jefferson."[92]

But the relations between Adams and Hamilton were now to break. For twelve years Hamilton had kept Adams angry. He began in 1789 with the inconsiderate and needless scheme of scattering the electoral votes of Federalists for second place, lest Washington fail of the highest number, and thus reduced Adams' vote to thirty-four, while Washington received sixty-nine. In 1796 he advised similar tactics, in order that Thomas Pinckney might get first place. For the past three years the President had endured the mortification of having Hamilton control his cabinet advisers. After the loss of New York, however, Adams turned elsewhere for strength, appointing John Marshall secretary of state in place of Timothy Pickering, and Samuel Dexter secretary of war in place of James McHenry. The mutual dislike of Hamilton and Adams had become so intensified that the slightest provocation on the part of either would make any form of political reconciliation impossible, and Adams' reconstruction of his Cabinet furnished this provocation. Pickering and McHenry were Hamilton's best supporters. They had done more to help him and to embarrass Adams, and their dismissal, because of the loss of New York, made Hamilton thirsty for revenge. Pickering suggested "a bold and frank exposure of Adams," offering to furnish the facts if Hamilton would put them together, and agreeing to arrange with George Cabot and other ultra Federalists of New England, known as the "Essex Junto," to throw Adams behind Charles C. Pinckney in the electoral vote. Their plan was to start Pinckney as the second Federalist candidate, with the hope that parties would be so divided as to secure his election for President. It was nothing more than the old "double chance" manœuvres of 1796, when Thomas Pinckney was Hamilton's choice for President; but the iniquity of the scheme was the deception practised upon the voters who desired Adams.

Of course, Adams soon learned of the revival of this old conspiracy, and passionately and hastily opened a raking fire upon the "Essex Junto," calling them a "British faction," with Hamilton as its chief, a designation to which the Republican press had made them peculiarly sensitive. This aroused Hamilton, who, preliminary to a quarrel, addressed the President, asking if he had mentioned the writer as one who belonged to a British faction. Receiving no reply, he again wrote the President, angrily repelling all aspersions of the kind. This the President likewise ignored.

Then Hamilton listened to Timothy Pickering. Fiery as his temper had often proved, and grotesquely obstinate as he had sometimes shown himself, Hamilton's most erratic impulse appears like the coolness of Jay when contrasted with the conduct upon which he now entered. The letter he proposed to write, ostensibly in justification of himself, was apparently intended for private circulation at some future day among Federal leaders, to whom it would furnish reasons why electors should unite in preferring Pinckney. It is known, too, that Hamilton's coolest and ablest advisers opposed such a letter, recalling the congressional caucus agreement, which he had himself advised, to vote fairly for both Adams and Pinckney. Besides, to impair confidence in Adams just at that moment, it was argued, would impair confidence in the Federal party, while at best such a letter could only produce confusion without compensatory results. But between Adams and Jefferson, Hamilton now preferred the latter. "I will never be responsible for him by my direct vote," he wrote in May, 1800, "even though the consequence be the election of Jefferson."[93] Moreover, Hamilton was accustomed to give, not to receive orders. Had Washington lived, Hamilton would doubtless never have written the letter, but now he wrote it, printed it, and in a few days was forced to publish it, since garbled extracts began appearing in the press. Many theories have been advanced as to how it fell into the hands of a public printer, some fanciful, others ridiculous, and none, perhaps, absolutely truthful. The story that Burr unwittingly coaxed a printer's errand boy to give him a copy, is not corroborated by Matthew L. Davis; but, however the publication happened, it was not intended to happen in that way and at that time.

It was an ugly letter, not up to Hamilton's best work. The vindication of himself and the Pinckneys lost itself in the severity of the attack upon Adams, whose career was reviewed from the distant day of an unsound judgment ventured in military affairs during the Revolution, to the latest display of a consuming egotism, vanity, and jealousy as President. In a word, all the quarrels, resentments, and antagonisms which had torn and rent the Federal party for four years, but which, thanks to Washington, had not become generally known, were now, in a moment, officially exposed to the whole country, to the great astonishment of most Federalists, and to the great delight of all Republicans. "If the single purpose had been to defeat the President," said John Adams, "no more propitious moment could have been chosen." Fisher Ames declared that "the question is not how we shall fight, but how we shall fall." In vain did Hamilton journey through New England, struggling to gain votes for Pinckney; in vain did the "Essex Junto" deplore the appearance of a document certain to do their Jacobin opponents great service. The party, already practically defeated by its alien and sedition legislation, and now inflamed with angry feelings, hastened on to the inevitable catastrophe like a boat sucked into the rushing waters of Niagara, while the party of Jefferson, united in principle, and encouraged by the divisions of their adversaries, marched on to easy victory. When the result was known, Jefferson and Burr had each seventy-three electoral votes, Adams sixty-five, Pinckney sixty-four, and Jay one.

It is difficult to realise the arguments which persuaded Hamilton to follow the suggestion of the fallen minister. Hot-tempered and impatient of restraint as he was, he knew Adams' attack had only paid him in kind. Nor is mitigation of Hamilton's conduct found in the statement, probably true, that the party could not in any case have carried the election. The great mass of Federalists believed, as Hamilton wrote Jay when asking an extra session of the Legislature, that the defeat of Jefferson was "the only means to save the nation from more disasters," and they naturally looked to him to accomplish that defeat. Of all men that ever led a political party, therefore, it was Hamilton's duty to sink personal antipathy, but in this attack upon Adams he seems deliberately to have sinned against the light. This was the judgment of men of his own day, and at the end of a century it is the judgment of men who cherish his teachings and revere his memory.

While Hamilton wrote and worried and wrestled, Aaron Burr rested on the well-earned laurels of victory. It had been a great fight. George Clinton did not take kindly to Thomas Jefferson, and stubbornly resisted allowing the use of his name to aid the Virginian's promotion; Horatio Gates and other prominent citizens who had left the political arena years before, if they could be said ever to have entered it, were also indisposed to head a movement that seemed to them certain to end in rout and confusion; but Burr held on until scruples disappeared, and their names headed a winning ticket. It was the first ray of light to break the Republican gloom, and when, six months later, the Empire State declared for Jefferson and Burr it added to the halo already surrounding the grandson of Jonathan Edwards.

It was known that Jefferson and Burr had run very evenly, and by the middle of December, 1800, it became rumoured that their vote was a tie. "If such should be the result," Burr wrote Samuel Smith, a Republican congressman from Maryland, "every man who knows me ought to know that I would utterly disclaim all competition. Be assured that the Federalist party can entertain no wish for such an exchange. As to my friends, they would dishonour my views and insult my feelings by a suspicion that I would submit to be instrumental in counteracting the wishes and the expectations of the people of the United States. And I now constitute you my proxy to declare these sentiments if the occasion should require."[94] At the time this letter was much applauded at public dinners and other Republican gatherings as proof of Burr's respect for the will of the people.

But the Federalists had plans of their own. "To elect Burr would be to cover the opposition with chagrin, and to sow among them the seeds of a morbid division," wrote Harrison Gray Otis of Massachusetts.[95] Gradually this sentiment took possession of New England and the Middle States, until it seemed to be the prevailing opinion of the Federal party. "Some, indeed most of our eastern friends are warm in support of Burr," said Gouverneur Morris, which James A. Bayard of Delaware corroborated in a note to Hamilton. "There appears to be a strong inclination in a majority of the Federal party to support Burr," he said.[96] "The current has already acquired considerable force, and is manifestly increasing." John Rutledge, governor of South Carolina, thought "his promotion will be prodigiously afflicting to the Virginia faction, and must disjoint the party. If Mr. B.'s Presidency be productive of evils, it will be very easy for us to get rid of him. Opposed by the Virginia party, it will be his interest to conciliate the Federalists."[97] Theodore Sedgwick, speaker of the House of Representatives, likewise declared that "most of the Federalists are for Burr. It is very evident that the Jacobins dread this appointment more even than that of General Pinckney. If he be elected by the Federalists against the hearty opposition of the Jacobins, the wounds mutually given and received will probably be incurable. Each will have committed the unpardonable sin. Burr must depend on good men for his support, and that support he cannot receive, but by a conformity to their views. At first, I confess, I was strongly disposed to give Jefferson the preference, but the more I have reflected, the more I have inclined to the other."[98]

To such a course Hamilton was bitterly opposed, not only because he distrusted Burr more than he did Jefferson, but because the Federalists should leave the responsibility of a selection to the Republicans and thus in nowise be answerable for the consequences. "If the anti-Federalists who prevailed in the election," he wrote Bayard of Delaware, "are left to take their own man, they remain responsible, and the Federalists remain free, united, and without stain, in a situation to resist with effect pernicious measures. If the Federalists substitute Burr, they adopt him, and become answerable for him. Whatever may be the theory of the case, abroad and at home, Mr. Burr must become, in fact, the man of our party; and if he acts ill, we must share in the blame and disgrace. By adopting him, we do all we can to reconcile the minds of Federalists to him, and we prepare them for the effectual operation of his acts. He will, doubtless, gain many of them; and the Federalists will become a disorganised and contemptible party. Can there be any serious question between the policy of leaving the anti-Federalists to be answerable for the elevation of an objectionable man, and that of adopting him ourselves, and becoming answerable for a man who, on all hands, is acknowledged to be a complete Catiline? 'Tis enough to state the question to indicate the answer, if reason, not passion, presides in the decision."[99]

Gouverneur Morris, now a United States senator, had already taken a similar position. Bayard of Delaware, who carried the vote of the little State in his pocket, and several other leading Federalists, listened with profound respect; but the great portion of the party, maddened by reverses, eager for revenge, and not yet mindless of Hamilton's campaign indiscretion, was in no temper to follow such prudent advice. As already indicated, the disposition was "to cover the opposition with chagrin," and "to sow among them the seeds of morbid division." Nor did they agree with Hamilton's estimate of Burr, which seemed to them attributable to professional and personal feuds, but maintained that he was a matter-of-fact man, artful and dexterous to accomplish his ends, and without pernicious theories, whose very selfishness was a guard against mischievous foreign predilection, and whose local situation was helpful to his appreciation of the utility of the country's commercial and federal systems, while his elevation to the Presidency would be a mortal stab to the Jacobins, breeding invincible hatred and compelling him to lean on the Federalists, who had nothing to fear from his ambition, since it would be checked by his good sense, or from any scheme of usurpation that he might attempt.

In vain did Hamilton combat these points, insisting that Burr was a man of extreme and irregular ambition, selfish to a degree which even excluded social affection, and decidedly profligate. He admitted that he was far more artful than wise, far more dexterous than able, but held that artfulness and dexterity were objections rather than recommendations, while he thought a systematic statesman should have a theory. "No general principles," he said, "will work much better than erroneous ones."[100] As to foreign predilection, he thought Burr as warm a partisan of France as Jefferson, and instead of leaning on good men, whom he knew would never support his bad projects, he would endeavour to disorganise both parties, and from the wreck form a third out of conspirators and other men fitted by character to carry out his schemes of usurpation. As the campaign advanced he became more emphatic, insisting that Burr's election would disgrace the country abroad, and that no agreement with him could be relied upon. "As well think to bind a giant by a cobweb as his ambition by promises."[101]

In the meantime the electoral count, as already anticipated, had thrown the election into the House of Representatives, where it would be decided on the 11th of February, 1801. In the House the Republicans controlled eight States to the Federalists' six, with Maryland and Vermont without a majority of either party. To elect Jefferson, therefore, an additional State must be secured, and to prevent it, if possible, the Federalists, by a party caucus held in January, resolved to support Burr, Bayard and three others, any one of whom could decide the choice for Jefferson, reserving the right to limit the contest to March 4, and thus avoid the risk of general anarchy by a failure to elect.

Very naturally the Republicans became alarmed and ugly. Jefferson wrote Madison of the deplorable tie, suggesting that it had produced great dismay and gloom among Republicans and exultation among Federalists, "who openly declare they will prevent an election."[102] James Gunn, a United States senator from Georgia and a Federalist, advised Hamilton that "the Jacobins are determined to resist the election of Burr at every hazard, and I am persuaded they have taken their ground with a fixed resolution to destroy the government rather than yield their point."[103] Madison thought if the then House of Representatives did not choose Jefferson, the next House would do so, supported as he was by the great body of the people, who would no longer submit "to the degradation of America by attempts to make Burr the President."[104]

Not a word came from Burr. Jefferson tried repeatedly to bring him to an explicit understanding without avail. His only published utterance on the subject, save the letter to Samuel Smith, was in a family note of January 15 to his son-in-law, Joseph Allston of South Carolina, in which he spoke of the tie as exciting great speculation and much anxiety, adding, "I believe that all will be well, and that Jefferson will be our President."[105] Five days before this, Speaker Sedgwick informed Hamilton that "Burr has expressed his displeasure at the publication of his letter by Samuel Smith,"[106] which, wrote Bayard on January 7, "is here understood to have proceeded either from a false calculation as to the result of the electoral vote, or was intended as a cover to blind his own party."[107] But there was no danger of Joseph Allston publishing his note, at least not until the fight was over.

Burr's letter to his son-in-law bore date at Albany. Being a member of the Legislature he had gone there early in January, where he not only kept silent but mysteriously aloof, although his lobbyists thronged Washington in such numbers that Senator Morris, on February 14, asked his colleague, John Armstrong, "how it happened that Burr, who is four hundred miles off, has agents here at work with great activity, while Mr. Jefferson, who is on the spot, does nothing?"[108] That these agents understood their mission and were quite as active as Morris represented, was evident by the reports sent from time to time to Hamilton, who remained in New York. "Some who pretend to know his views," wrote Morris, "think he will bargain with the Federalists."[109] Bayard was also approached. "Persons friendly to Mr. Burr state distinctly that he is willing to consider the Federalists as his friends, and to accept the office of President as their gift."[110] As early as January 10 Governor Rutledge wrote that "we are assured by a gentleman who lately had some conversation with Mr. Burr on this subject that he is disposed to maintain and expand our systems."[111]

As the campaign proceeded it became evident to Burr that Republicans were needed as well as Federalists, and a bright young man, William P. Van Ness, who had accompanied Burr to Albany as a favourite companion, wrote Edward Livingston, the brilliant New York congressman, that "it is the sense of the Republicans in this State that, after some trials in the House, Mr. Jefferson should be given up for Mr. Burr."[112] This was wholly conjectural, and Burr and his young friend knew it; but it was a part of the game, since Burr, so Hamilton wrote Morris, "perfectly understands himself with Edward Livingston, who will be his agent at the seat of government," adding that Burr had volunteered the further information "that the Federalists might proceed in the certainty that, upon a second ballot New York and Tennessee would join him."[113] There is no doubt Burr believed then, and for some time afterward, that Edward Livingston was his friend, but he did not know that Jefferson had offered the secretaryship of the navy to Edward's brother, the powerful Chancellor,[114] or that the Chancellor's young brother was filling Jefferson's diary with the doings and sayings of those who were interested in Burr's election. Edward got a United States attorneyship for his treachery, and soon after became a defaulter for thirty thousand dollars under circumstances of culpable carelessness, as the Treasury thought.[115]

The voting began on February 11. On the first ballot eight States voted for Jefferson and six for Burr, Vermont and Maryland being neutralised by an even party division. In this manner the voting continued for six days, through thirty-five ballots, the House taking recesses to give members rest, caucuses opportunity to meet, and the sick time to be brought in on their beds. Finally, on the thirty-sixth ballot, the Vermont Federalist withdrew, and the four Maryland Federalists, with Bayard of Delaware, put in blanks, giving Jefferson ten States and Burr five.

Burr had played his game with the skill of a master. The tactics that elected him to the United States Senate in 1791 and made him a gubernatorial possibility in 1792 were repeated on a larger scale and shrouded in deeper mystery. He had appeared to disavow any intention of supplanting Jefferson, and yet had played for Federalist and Republican support so cleverly that Jefferson pronounced his conduct "honourable and decisive, and greatly embarrassing" to those who tried to "debauch him from his good faith." In the evening of the inauguration, President and Vice President received together the congratulations of their countrymen at the presidential mansion. At Albany banqueting Republicans drank the health of "Aaron Burr, Vice President of the United States; his uniform and patriotic exertions in favour of Republicanism eclipsed only by his late disinterested conduct."

But when soberer thoughts came the Republican mind was disturbed with the question why Burr, after the Federalists had openly resolved to support him, did not proclaim on the housetop what he had written to Samuel Smith before the tie was known. Gradually the truth began to dawn as men talked and compared notes, and before three months had elapsed Jefferson's estimate of Burr's character corresponded with Hamilton's. It is of record that from 1790 to 1800 Jefferson considered him "for sale," and when the Virginians, after twice refusing to vote for him, finally sustained him for Vice President, they did so repenting their act.[116]

It is not easy to indicate the source of Burr's inherent badness. His father, a clergyman of rare scholarship and culture, became, at the age of thirty-two, the second president of Princeton College, while Jonathan Edwards, his maternal grandfather, whose "Freedom of the Will" made him an intellectual world-force, became its third president; but if one may accept contemporary judgment, Aaron Burr had scarcely one good or great quality of heart. Like Lord Chesterfield, his favourite author, he had intellect without truth or virtue; like Chesterfield, too, he was small in stature and slender.[117] Here, however, the comparison must end if Lord Hervey's description of Chesterfield be accepted, for instead of broad, rough features, and an ugly face, Burr's personal appearance, suggested by the delicately chiselled features in the marble, was the gift of a mother noted for beauty as well as for the inheritance of her father's great intellectuality. Writers never forget the large black eyes, keen and penetrating, so irresistible to gifted and beautiful women. They came from the Edwards side; but from whence came the absence of honour that distinguished this son and grandson of the Princeton presidents, tradition does not inform us.

CHAPTER X
JOHN JAY AND DeWITT CLINTON
1800

The election that decided the contest for Jefferson, returned DeWitt Clinton to the State Senate, and a Republican majority to the Assembly. As soon as the Legislature met, therefore, Clinton proposed a new Council of Appointment. Federalists shrieked in amazement at such a suggestion, since the existing Council had served little more than half its term. To this Republicans replied, good naturedly, that although party conditions were reversed, arguments remained the same, and reminded them that in 1794, when an anti-Federalist Council had served only a portion of its term, the Federalists compelled an immediate change. Whatever was fair for Federalists then, they argued, could not be unfair for Republicans now. If it was preposterous, as Josiah Ogden Hoffman had asserted, for a Council to serve out its full term in 1794, it was preposterous for the Council of 1800 to serve out its full term; if Schuyler was right that it was a dangerous and unconstitutional usurpation of power for the anti-Federalist Council to continue its sittings, it was a dangerous and unconstitutional usurpation of power for the Federalist Council of 1800 to continue its sittings. Of course Federalists were wrong in 1794, and Republicans were wrong in 1800, but there was as much poetic justice in the situation as a Republican could desire. As soon as the Assembly had organised, therefore, DeWitt Clinton, Ambrose Spencer, Robert Roseboom, and John Sanders became the Council of Appointment. Sanders was a Federalist, but Roseboom was a Republican, whose pliancy and weakness made him the tool of Clinton and Spencer.

DeWitt Clinton had at last come to his own. Until now his life had been uncheckered by important incident and unmarked by political achievement. He had run rapidly through the grammar school of Little Britain, his native town; through the academy at Kingston, the only one then in the State; through Columbia College, which he entered as a junior at fifteen and from which he graduated at the head of his class; and through his law studies with Samuel Jones. In 1789 came an appointment as private secretary to his uncle, George Clinton. When Governor Jay sought the assistance of another in 1795, Clinton resumed the law; but he continued to practise politics for a living, and at last found himself in the Assembly of 1797. He was then twenty-eight, strong, handsome, and well equipped for any struggle. He had devoted his leisure moments to reading, for which he had a passion that lasted him all his lifetime. He was especially fond of scientific studies, and of the active-minded Samuel L. Mitchill, six years his senior, who gave scientific reputation to the whole State.

In spite of his love for science, DeWitt Clinton was a born politician, with all the characteristic incongruities incident to such a life. He had the selfishness of Livingston, the inconsistency of Spencer, the imperiousness of Root, and the ability of a statesman. Unlike most other men of his party, he did not rely wholly upon discipline and organisation, or upon party fealty and courtesy. Hamilton had cherished the hope that Clinton might become a Federalist, not because he was a trimmer, or would seek a party in power simply for the spoils in sight, but because he had the breadth and liberality of enlightened opinions, the prophetic instinct, and the force of character to make things go his way, without drifting into success by a fortunate turn in tide and wind. He was not a mere day-dreamer, a theorist, a philosopher, a scholar, although he possessed the gifts of each. He was, rather, a man of action—self-willed, self-reliant, independent—as ambitious as Burr without his slippery ways, and as determined as Hamilton with all his ability to criticise an opponent. Clinton relied not more upon men than upon measures, and in the end the one thing that made him superior to all his contemporaries of the nineteenth century was a never-failing belief in the possibility of success along lines marked out for his life's work. He had faults and he committed errors. His one great political defect filled him with faults. He would be all or nothing. Attachment to his interests was the one supreme and only test of fitness for favours or friendship, and at one time or another he quarrelled with every friend who sought to retain independence of action.

Just now Clinton was looking with great expectancy into the political future. From defeat in 1796 he had reached the Assembly in 1797, and then passed to the State Senate in 1798; and from defeat in 1799 he passed again into the Senate in 1800. Thus far his record was without blemish. As a lad of eighteen he sided with his uncle in the contest over the Federal Constitution; but once it became the supreme law of the land he gave it early and vigorous support, not even soiling his career by a vote for the Kentucky resolutions. Unlike the Livingstons, he found little to commend in the controversy with Genet and the French, and in Jay's extra session of the Legislature he voted arms and appropriations to sustain the hands of the President and the honour of the flag. But he condemned the trend of Federalism as unwise, unpatriotic, and dangerous to the liberty of the citizen and to the growth of the country; and with equal force he opposed the influence of the French Revolution, maintaining that deeds of violence were unnecessary to startle the public into the knowledge that suffering exists, and that bad laws and bad social conditions result in hunger and misery. If he had been a great orator he would have charmed the conservatives who hated Federalism and dreaded Jacobinism. Like his uncle he spoke forcibly and with clearness, but without grace or eloquence; his writing, though correct in style and sufficiently polished, lacked the simplicity and the happy gift of picturesque phrase which characterised the letters of so many of the public men of that day. Yet he was a noble illustration of what may be accomplished by an indomitable will, backed by a fearless independence and a power to dominate people in spite of antagonism of great and successful rivals.

Clinton was now only at the opening of his great career. Even at this time his contemporaries seem to have made up their minds that he had a great career before him, and when he and Governor Jay met as members of the new Council of Appointment, on February 11, 1801, it was like Greek meeting Greek. If Jay was the mildest mannered man in the State, he was also one of the firmest; and on this occasion he did not hesitate to claim the exclusive right of nomination for office as had Governor Clinton in 1794. Clinton, on the other hand, following the course pursued by Philip Schuyler, boldly and persistently claimed a concurrent right on the part of the senatorial members. The break came when Jay nominated several Federalists for sheriff of Orange County, all of whom were rejected. Then Clinton made a nomination. Instead of putting the question Jay made a further nomination, on which the Council refused to vote. This ended the session. Jay asked for time to consider, and never again convened the Council; but two days later he sent a message to the Assembly, reviewing the situation and asking its advice. He also requested the opinion of the Chancellor and the Supreme Court Judges. The Assembly replied that it was a constitutional question for the Governor and the Council; the Judges declined to express an opinion on the ground that it was extra-judicial. Three weeks later Clinton, Spencer, and Roseboom reported to the Assembly, with some show of bitterness, that they had simply followed the precedent of Egbert Benson's appointment to the Supreme Court in 1794, an appointment, it will be remembered, which was made on the nomination of Philip Schuyler and confirmed, over the protest of Governor Clinton, by a majority of the Council.

Jay's failure to reconvene the Council seemed to gratify Clinton—if, indeed, his action had not been deliberately taken to provoke the Governor into such a course. Appointments made under such conditions could scarcely satisfy an ambitious leader who had friends to reward; and, besides, the election of a new governor in the following month would enable him to appoint a corps of men willing to do the bidding of their new master. On the other hand, Governor Jay closed his official career as he began it. His first address to the Legislature discovered an intention of adhering to the dogmas of civil service, and so far as directly responsible he seems to have maintained the principle of dismissing no one for political reasons.

The closing days of Jay's public life included an act for the gradual abolition of domestic slavery. It cannot be called an important feature of his administration, since Jay was entitled to little credit for bringing it about. Although he had been a friend of emancipation, and as president of an anti-slavery society had characterised slavery as an evil of "criminal dye," his failure to recommend emancipation in his messages emphasises the suggestion that he was governed by the fear of its influence upon his future political career. However this may be, it is certain that he resigned the presidency of the abolition society at the moment of his aroused ambition immediately preceding his nomination for governor in 1792. His son explains that the people of the State did not favour abolition; yet the reform apparently needed only the vigorous assistance of the Governor, for in 1798 a measure similar to the act of 1799 failed in the Assembly only by the casting vote of the chairman in committee of the whole.

One thing, though, may be assumed, that a man so animated by high principles as John Jay must have felt amply justified in taking the course he did. Of all distinguished New Yorkers in the formative period of the government, John Jay, perhaps, possessed in fullest measure the resplendent gifts that immortalise Hamilton. Nevertheless, it was the purity of his life, the probity of his actions, the excellence of his public purposes, that commended him to the affectionate regard of everybody. "It was never said of him," wrote John Quincy Adams, "that he had a language official and a language confidential." During a political career of eight and twenty years, if he ever departed from the highest ideal of an irreproachable uprightness of character, it is not of record. His work was criticised, often severely, at times justly, but his character for honesty and goodness continued to the end without blemish.

It is difficult to say in what field Jay did the best work. He excelled in whatever he undertook. He had poise, forcefulness, moderation, moral earnestness, and mental clearness. Whether at home or abroad the country knew his abiding place; for his well-doing marked his whereabouts as plainly as smoke on a prairie indicates the presence of a camp. He has been called the draftsman of the Continental Congress, the constitution-maker of New York, the negotiator of the peace treaty, and dictator under the Confederation, and he came very near being all that such designations imply. In a word, it may be said that what George Washington was in the field, in council, and as President, John Jay was in legislative halls, in diplomatic circles, and as a jurist.

The crowning act of his life was undoubtedly the peace treaty of 1783. But great as was this diplomatic triumph he lived long enough to realise that the failure to include Canada within the young Republic's domain was ground for just criticism. In his note to Richard Oswald, preliminary to any negotiations, Franklin suggested the cession of Canada in token "of a durable peace and a sweet reconciliation," having in mind England's desire that loyalists in America be restored to their rights. This was one of the three essentials to peace, and to meet it Franklin's note proposed that compensation be paid these loyalists out of the sale of Canada's public lands. Subsequent revelations made it fairly certain that had such cession, with its concessions to the loyalists, been firmly pressed, Canada would have become American territory. Why it was not urged remains a secret. There is no evidence that Franklin ever brought his suggestion to Oswald to the attention of Jay,[118] but it is a source of deep regret that Jay's profound sagacity did not include a country whose existence as a foreign colony on our northern border has given rise to continued embarrassment. The feeling involuntarily possesses one that he, who owned the nerve to stop all negotiations until Englishman and American met on equal terms as the representatives of equal nations, and dared to break the specific instructions of Congress when he believed France favoured confining the United States between the Atlantic and the Alleghanies, would have had the temerity to take Canada, had the great foresight been his to discern the irritating annoyances to which its independence would subject us.

Jay's brief tenure of the chief-justiceship of the United States Supreme Court gave little opportunity to test his real ability as a jurist. The views expressed by him pending the adoption and ratification of the Federal Constitution characterised his judicial interpretation of that instrument, and he lived long enough to see his doctrine well established that "government proceeds directly from the people, and is ordained and established in the name of the people." His distinguishing trait as chief justice was the capacity to confront, wisely and successfully, the difficulties of any situation by his own unaided powers of mind, but it is doubtful if the Court, under his continued domination, would have acquired the strength and public confidence given it by John Marshall. Jay believed that "under a system so defective it would not obtain the energy, weight, and dignity essential to its affording due support to the general government." This was one reason for his declining to return to the office after he ceased to be governor; he felt his inability to accomplish what the Court must establish, if the United States continued to grow into a world power. Under these circumstances, it was well, perhaps, that he gave place to John Marshall, who made it a great, supporting pillar, strong enough to resist state supremacy on the one side, and a disregard of the rights of States on the other; but Jay did more than enough to confirm the wisdom of Washington, who declared that in making the appointment he exercised his "best judgment."

CHAPTER XI
SPOILS AND BROILS OF VICTORY
1801-1803

John Jay, tired of public life, now sought his Westchester farm to enjoy the rest of an honourable retirement, leaving the race for governor in April, 1801, to Stephen Van Rensselaer. On the other hand, George Clinton, accepting the Republican nomination, got onto his gouty legs and made the greatest run of his life.[119] Outside of New England, Federalism had become old-fashioned in a year. Following Jefferson's sweeping social success, men abandoned knee breeches and became democratic in garb as well as in thought. Henceforth, New York Federalists were to get nothing except through bargains and an occasional capture of the Council of Appointment.

The election of George Clinton gave the party of Jefferson entire control of the State. It had the governor, the Legislature, and the Council of Appointment. It only remained to empower the Council to nominate as well as to confirm, and the boss system, begun in 1794, would have the sanction of law. For this purpose delegates, elected by the people, met at Albany on the 13th of October, 1801, and organised a constitutional convention by the election of Aaron Burr as president. Fortune had thus far been very good to Burr. At forty-five he stood one step only below the highest place in the nation, and now by a unanimous vote he became president of the second constitutional convention of the Empire State. His position was certainly imposing, but when the convention declared, as it did, that each member of the Council had the right to nominate as well as to confirm, Burr sealed DeWitt Clinton's power to overthrow and humiliate him.

In its uncompromising character DeWitt Clinton's dislike of Burr resembled Hamilton's, although for entirely different reasons. Hamilton thought him a dangerous man, guided neither by patriotism nor principle, who might at any moment throttle constitutional government and set up a dictatorship after the manner of Napoleon. Clinton's hostility arose from the jealousy of an ambitious rival who saw no room in New York for two Republican bosses. Accordingly, when the Council, which Jay had refused to reassemble, reconvened under the summons of Governor Clinton, it quickly disclosed the policy of destroying Burr and satisfying the Livingstons.[120] President Jefferson had already sent the Chancellor to France, and the Legislature had made John Armstrong, his brother-in-law, a United States senator. But enough of the Chancellor's family remained to fill other important offices, and the Council made Edward, a brother, mayor of New York; Thomas Tillotson, a brother-in-law, secretary of state; Morgan Lewis, a fourth brother-in-law, chief justice, and Brockholst Livingston, a cousin, justice of the Supreme Court.

Out of the spoils that remained, and there was an abundance, DeWitt Clinton and Ambrose Spencer helped themselves; and then they divided the balance between their relatives and supporters. Sylvanus Miller, an ardent and lifelong friend of the former, became surrogate of New York; Elisha Jenkins, who deserted the Federalists in company with Spencer, took John V. Henry's place as state comptroller; Richard Riker, the friend and second of Clinton in his famous duel with John Swartout, became district attorney in place of Cadwallader D. Colden, a worthy grandson of "Old Silver Locks," the distinguished colonial lieutenant-governor; John McKisson, a protégé of Spencer, took the clerkship of the Circuit Court from William Coleman, subsequently the brilliant editor of the Evening Post, established by Jay and Hamilton; and William Stewart, a brother-in-law of George Clinton, displaced Nathan W. Howell as assistant attorney-general. Thus the work of the political guillotine went on. It took sheriffs and surrogates; it spared neither county clerks nor justices of the peace; it left not a mayor of a city, nor a judge of a county. Even the residence of an appointee did not control. Sylvanus Miller of Ulster was made surrogate of New York with as much disregard of the people's wishes as Ruggles Hubbard of Rensselaer, who had visited the city but twice and knew nothing of its people or its life, was afterward made its sheriff.

When Clinton and Spencer finished their work a single Federalist, Josiah Ogden Hoffman, the attorney-general, remained in office, and he survived only until Ambrose Spencer could take his place. Soon afterward Spencer was advanced to the Supreme Court in place of Jacob Radcliff, a promotion that filled Federalists with the greatest alarm. Looking back upon the distinguished career of Chief Justice Spencer, it seems strange, almost ridiculous, in fact, that his appointment to the bench should have given rise to such fears; but Spencer had been the rudest, most ferocious opponent of all. The Federalists were afraid of him because they believed with William P. Van Ness, the young friend of Burr, that he was "governed by no principles or feelings except those which avarice and unprincipled ambition inspired."[121] Van Ness wrote with a pen dipped in gall, yet, if contemporary criticism be accepted, he did not exaggerate the feeling entertained for Spencer by the Federalists of that day. Like DeWitt Clinton, he was a bad hater, often insolent, sometimes haughty, and always arbitrary. After he left the Federalist party and became a member of the celebrated Council of 1801, he seemed over-zealous in his support of the men he had recently persecuted, and unnecessarily severe in his treatment of former associates. "The animosity of the apostate," said Van Ness, "cannot be controlled. Savage and relentless, he thirsts for vengeance. Such is emphatically the temper of Ambrose Spencer, who, after his conversion, was introduced to a seat in the Legislature, by his new friends, for the express purpose of perplexing and persecuting his old ones."[122] Spencer never got over being a violent partisan, but he was an impartial, honest judge. The strength of his intellect no one disputed, and if his political affiliations seemed to warp his judgment in affairs of state, it was none the less impartial and enlightened when brought to bear on difficult questions of law.

The timely resignation of John Armstrong from the United States Senate made room for DeWitt Clinton, who, however, a year later, resigned the senatorship to become mayor of New York. The inherent strength of the United States Senate rested, then as now, upon its constitutional endowment, but the small body of men composing it, having comparatively little to do and doing that little by general assent, with no record of their debates, evidently did not appreciate that it was the most powerful single chamber in any legislative body in the world. It is doubtful if the framers of the Constitution recognised the enormous power they had given it. Certainly DeWitt Clinton and his resigning colleagues did not appreciate that the combination of its legislative, executive, and judicial functions would one day practically dominate the Executive and the Congress, for the reason that its members are the constitutional advisers of the President, without whose assent no bill can become a law, no office can be filled, no officer of the government impeached, and no treaty made operative.

In taking leave of the United States Senate, Clinton probably gave little thought to the character of the place, whether it was a step up or a step down to the mayoralty. Just then he was engaged in the political annihilation of Aaron Burr, and he felt the necessity of entering the latter's stronghold to deprive him of influence. Out of six or seven thousand appointments made by the Council of Appointment not a friend of Aaron Burr got so much as the smallest crumb from the well-filled table. Even Burr himself, and his friend, John Swartout, were forced from the directorate of the Manhattan Bank that Burr had organised. "With astonishment," wrote William P. Van Ness, "it was observed that no man, however virtuous, however unspotted his life or his fame, could be advanced to the most unimportant appointment, unless he would submit to abandon all intercourse with Mr. Burr, vow opposition to his elevation, and like a feudal vassal pledge his personal services to traduce his character and circulate slander."[123]

Governor Clinton feebly opposed this wholesale slaughter by refusing to sign the minutes of the Council and by making written protests against its methods; but greater emphasis would doubtless have availed no more, since the constitutional convention had reduced the governor to the merest figurehead. His one vote out of five limited the extent of his prerogative. Power existed in the combine only, and so well did DeWitt Clinton control that when the famous Council of 1801 had finished its work nothing remained for succeeding Councils to do until Clinton, the prototype of the party boss, returned in 1806 to crush the Livingstons.

Occasionally a decapitated office-holder fiercely resented the Council's action, and, to make it sting the more, complimented the Governor for his patriotic and unselfish opposition. John V. Henry evidenced his disgust by ever after declining public office, though his party had opportunities of recognising his great ability and rewarding his fidelity. Ebenezer Foote, a bright lawyer, who took his removal from the clerkship of Delaware County very much to heart, opened fire on Ambrose Spencer, charging him with base and unworthy motives in separating from the Federalists. To this Spencer replied with characteristic rhetoric. "Your removal was an act of justice to the public, inasmuch as the veriest hypocrite and the most malignant villain in the State was deprived of the power of perpetuating mischief. If, as you insinuate, your interests have by your removal been materially affected, then, sir, like many men more honest than yourself, earn your bread by the sweat of your brow."[124]

At Washington, Jefferson had rewarded friends as openly as DeWitt Clinton took care of them in Albany. In telling the story, James A. Bayard of Delaware produced an oratorical sensation in the House of Representatives. "And now, sir, let me ask the honourable gentleman," said the congressman, in reply to William Giles' defence of the Virginia President, "what his reflections and belief will be when he observes that every man on whose vote the event of Mr. Jefferson's election hung has since been distinguished by presidential favour. Mr. Charles Pinckney of South Carolina was one of the most active, efficient and successful promoters of the election of the present chief magistrate, and he has since been appointed minister plenipotentiary to the court of Madrid—an appointment as high and honourable as any within the gift of the Executive. I know what was the value of the vote of Mr. Claiborne of Tennessee; the vote of a State was in his hands. Mr. Claiborne has since been raised to the high dignity of governor of the Mississippi Territory. I know how great, and how greatly felt, was the importance of the vote of Mr. Linn of New Jersey. The delegation of the State consists of five members; two of the delegation were decidedly for Mr. Jefferson, two were decidedly for Mr. Burr. Mr. Linn was considered as inclining to one side, but still doubtful; both parties looked up to him for the vote of New Jersey. He gave it to Mr. Jefferson; and Mr. Linn has since had the profitable office of supervisor of his district conferred upon him. Mr. Lyon of Vermont was in this instance an important man; he neutralised the vote of Vermont; his absence alone would have given the State to Mr. Burr. It was too much to give an office to Mr. Lyon; his character was low; but Mr. Lyon's son has been handsomely provided for in one of the executive offices. I shall add to the catalogue but the name of one more gentleman, Mr. Edward Livingston of New York. I knew well—full well I knew—the consequence of this gentleman. His means were not limited to his own vote; nay, I always considered more than the vote of New York within his power. Mr. Livingston has been made the attorney for the district of New York; the road of preferment has been opened to him, and his brother has been raised to the distinguished place of minister plenipotentiary to the French Republic."[125]

Albert Gallatin, Jefferson's secretary of the treasury, thought Burr less selfish than either the Clintons or the Livingstons, and, on the score of office-seeking, Gallatin was probably correct. But Burr, if without relatives, had several devoted friends whom he pressed for appointment, among them John Swartout for marshal, Daniel Gelston for collector, Theodorus Bailey for naval officer, and Matthew L. Davis for supervisor. Swartout succeeded, but DeWitt Clinton, getting wind of the scheme, entered an heroic protest to Jefferson, who quickly concurred in Clinton's wishes without so much as a conference with Gallatin or Burr. The latter, hearing rumours of the secret understanding, sent a sharp letter to Gallatin, pressing Davis' appointment on the ground of good faith, with a threat that he would no longer be trifled with; but Gallatin was helpless as well as ignorant, and the President silent. Davis' journey to Monticello developed nothing but Jefferson's insincerity, and on his return to New York the press laughed at his credulity.

This ended Burr's pretended loyalty to the Administration. On his return to Washington, in January, 1802, he quietly watched his opportunity, and two weeks later gave the casting vote which sent Jefferson's pet measure, the repeal of the judiciary act of 1801, to a select committee for delay, instead of to the President for approval. Soon after, at a Federalist banquet celebrating Washington's birthday, Burr proposed the toast, "The union of all honest men." This was the fatal stab. The country didn't understand it, but to Jefferson and the Clintons it meant all that Burr intended, and from that moment DeWitt Clinton's newspaper, the American Citizen and Watchtower, owned by his cousin and edited by James Cheetham, an English refugee, took up the challenge thus thrown down, and began its famous attack upon the Vice President.

Burr's conduct during those momentous weeks when Federalists did their utmost to make him President, gave his rivals ample ground for creating the belief that he had evidenced open contempt for the principles of honest dealing. Had he published a letter after the Federalists decided to support him, condemning their policy as a conspiracy to deprive the people of their choice for President, and refusing to accept an election at their hands if tendered him, it must have disarmed his critics and smoothed his pathway to further political preferment; but his failure so to act, coupled with his well-known behaviour and the activity of his friends, gave opponents an advantage that skill and ability were insufficient to overcome.

James Cheetham handled his pen like a bludgeon. Even at this distance of time Cheetham's "View of Aaron Burr's Political Conduct," in which is traced the Vice President's alleged intrigues to promote himself over Jefferson, is interesting and exciting. Despite its bitter sarcasm and torrent of vituperation, Cheetham's array of facts and dates, the designation of persons and places, and the bold assumptions based on apparent knowledge, backed by foot-notes that promised absolute proof if denial were made, impress one strongly. There is much that is weak, much that is only suspicion, much that is fanciful. A visit to an uncle in Connecticut, a call upon the governor of Rhode Island, a communication sent under cover to another, letters in cipher, pleasant notices in Federalist newspapers, a journey of Timothy Green to South Carolina—all these belong to the realm of inference; but the method of blending them with well established facts was so artful, the writer's sincerity so apparent, and the strokes of the pen so bold and positive, that it is easy to understand the effect which Cheetham's accusation, taken up and ceaselessly repeated by other papers, would have upon the political fortunes of Burr.

Nevertheless the Vice President remained silent. He did not feel, or seem to feel, newspaper criticism with the acuteness of a sensitive nature trying to do right. "They are so utterly lost on me that I should never have seen even this," he wrote Theodosia, "but that it came inclosed to me in a letter from New York." Still Cheetham kept his battery at work. After his "Narrative" came the "View," and then, in 1803, "Nine Letters on the Subject of Burr's Defection," a heavier volume, a sort of siege-gun, brought up to penetrate an epidermis heretofore apparently impregnable. Finally, the Albany Register took up the matter, followed by other Republican papers, until their purpose to drive the grandson of Jonathan Edwards from the party could no longer be mistaken.[126]

Burr's coterie of devoted friends so understood it, and when the gentle Peter Irving, whose younger brother was helping the newly established Chronicle into larger circulation by his Jonathan Oldstyle essays, showed an indisposition as editor of the Burrite paper to vituperate and lampoon in return, William P. Van Ness, the famous and now historic "Aristides," appeared in the political firmament with the suddenness and brilliancy of a comet that dims the light of stars.

Van Ness coupled real literary ability with political audacity, putting Cheetham's fancy flights and inferences to sleep as if they were babes in the woods. It was quickly seen that Cheetham was no match for him. He had neither the finish nor the venom. Compared to the sentences of "Aristides," as polished and attractive as they were bitter and ill-tempered, Cheetham's periods seemed coarse and tame. The letters of Junius did not make themselves felt in English political life more than did this pamphlet in the political circles of New York. It was novel, it was brilliantly able, and it drove the knife deeper and surer than its predecessors. What Taine, the great French writer, said of Junius might with equal truth be said of "Aristides," that if he made his phrases and selected his epithets, it was not from the love of style, but in order the better to stamp his insult. No one knew then, nor until long afterward, who "Aristides" was—not even Cheetham could pierce the incognito; but every one knew that upon him the full mind of Aaron Burr had unloaded a volume of information respecting men, their doings and sayings, which enriched the work and made his rhetoric an instrument of torture. It bristled with history and character sketches. Whatever the Vice President knew, or thought he knew, was poured into those eighty pages with a staggering fulness and disregard of consequences that startled the political world and captivated all lovers of the brilliant and sensational in literature. Confidences were revealed, conversations made public, quarrels uncovered, political secrets given up, and the gossip of Council and Legislature churned into a story that pleased every one. What Hamilton's attack on Adams did for Federalists, "Aristides'" reply to Cheetham did for the Republicans; but the latter wrote with a ferocity unknown to the pages of the great Federalist's unfortunate letter.

"Aristides" struck at everybody and missed no one. The Governor "has dwindled into the mere instrument of an ambitious relative;" Tillotson was "a contemptible shuffling apothecary, without ingenuity or devise, or spirit to pursue any systematic plan of iniquity;" Richard Riker was "an imbecile and obsequious pettifogger, a vain and contemptible little pest, who abandoned the Federal standard on the third day of the election, in April, 1800;" John McKisson, "an execrable compound of every species of vice," was the man whom Clinton "exultingly declared a great scoundrel." The attack thus daringly begun was steadily maintained. Ambrose Spencer was "a man as notoriously infamous as the legitimate offspring of treachery and fraud can possibly be;" Samuel Osgood, "a born hypocrite, propagated falsehood for the purpose of slander and imposition;" Chancellor Livingston, "a capricious, visionary theorist," was "lamentably deficient in the practical knowledge of a politician, and heedless of important and laborious pursuits, at which his frivolous mind revolted."

The greatest interest of the pamphlet, however, began when "Aristides," taking up the cause of Burr, struck at higher game than Richard Riker or Ambrose Spencer. DeWitt Clinton was portrayed as "formed for mischief," "inflated with vanity," "cruel by nature," "an object of derision and disgust," "a dissolute and desperate intriguer," "an adept in moral turpitude, skilled in all the combination of treachery and fraud, with a mind matured by the practice of iniquity, and unalloyed with any virtuous principle." "Was it not disgraceful to political controversy," continues "Aristides," with an audacity of denunciation and sternness of animosity, "I would develop the dark and gloomy disorders of his malignant bosom, and trace each convulsive vibration of his wicked heart. He may justly be ranked among those, who, though destitute of sound understandings, are still rendered dangerous to society by the intrinsic baseness of character that engenders hatred to everything good and valuable in the world; who, with barbarous malignity, view the prevalence of moral principles, and the extension of benevolent designs; who, foes to virtue, seek the subversion of every valuable institution, and meditate the introduction of wild and furious disorders among the supporters of public virtue. His intimacy with men who have long since disowned all regard to decency and have become the daring advocates of every species of atrocity; his indissoluble connection with those, who, by their lives, have become the finished examples of profligacy and corruption; who have sworn enmity, severe and eternal, to the altar of our religion and the prosperity of our government, must infallibly exclude him from the confidence of reputable men. What sentiments can be entertained for him, but those of hatred and contempt, when he is seen the constant associate of a man whose name has become synonymous with vice, a dissolute and fearless assassin of private character, of domestic comfort, and of social happiness; when he is known to be the bosom friend and supporter of the profligate and abandoned libertine, who, from the vulgar debauches of night, hastens again to the invasion of private property. Who, through the robbery of the public revenue, and the violation of private seals, hurries down the precipice of deep and desperate villainy."

This parting shot at Cheetham penetrated the most secret corners of private life, and leaves an impression that Cicero's denunciation of Catiline had delighted the youth of "Aristides." It would be fruitless to attempt the separation of the truth from the undeserved reproaches of Van Ness, but at the end of the discussion, Burr's character had not benefited. However unscrupulous and selfish the Clintons and the Livingstons might be, Burr's unprincipled conduct was fixed in the mind of his party, not by Cheetham's indulgence in fancy and inference, but by the well known and well established facts of history, which no rhetoric could wipe out, and no denunciation strengthen.

In the days of the duello such a war of words could hardly go on for two or three years without a resort to the pistol. Cheetham's pen had stirred up the tongues of men who resented charge with countercharge, and the high spirited United States marshal, John Swartout, the only friend of Burr in office, was quick to declare that DeWitt Clinton's opposition to the Vice President was based upon unworthy and selfish motives. Clinton answered promptly and passionately. The Governor's nephew displayed a fondness for indulging the use of epithets even in mature years, after he had quarrelled with William L. Marcy and Martin Van Buren. In those calmer days when age is supposed to bring a desire for peace, he was accustomed to call Erastus Root "a bad man," Samuel Young "much of an imbecile," Marcy "a scoundrel," and Van Buren "the prince of villains." Just now, however, Clinton was younger, only thirty-two years old, about the age of Swartout, and on hearing of the latter's criticism he trebled his epithets, pronouncing him "a liar, a scoundrel and a villain." Swartout quickly demanded a retraction, which Clinton declined unless the Marshal first withdrew his offensive words. Thereupon, the latter sent a challenge, and Clinton, calling in his friend, Richard Riker, the district attorney, met his adversary the next day at Weehawken and exchanged three shots without effect. On the fourth Clinton's bullet struck Swartout's left leg just below the knee, and while the surgeon was cutting it out, the Marshal renewed his demand for an apology. Clinton still refused, although expressing entire willingness to shake hands and drop the matter. On the fifth shot, the Marshal caught Clinton's ball in the same leg just above the ankle. Still standing steadily at his post and perfectly composed, Swartout demanded further satisfaction; but Clinton, tired of filling his antagonist with lead, declined to shoot again and left the field. In the gossip following the duel, Riker reported Clinton as saying in the course of the contest, "I wish I had the principal here."[127] The principal, of course, was Burr, to whose house the wounded Swartout was taken. "No one ever explained," says Henry Adams,[128] "why Burr did not drag DeWitt Clinton from his ambush and shoot him, as two years later he shot Alexander Hamilton with less provocation."