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LEGAL HISTORY II

Champerty/Contingent Fee

Champ/Cont. Fee II

Champ/Cont. Fee III

Champ/Cont. Fee IV

Champ/Cont. Fee V

Champ/Cont. Fee VI

Champ/Cont. Fee VII

NY Divorce--1829

NY Divorce II--1829

NY Divorce III-1829

NY Divorce IV-1829

Jugglers and Mountebanks

Hawkers and Peddlers

Hawkers II

Lightning Rod Salesmen

Lightning Rod Sales II

The Oregon Mission

Oregon Mission II

Oregon Mission III

Oregon Mission IV

Oregon Mission V

Oregon Mission VI

Oregon Mission VII

The "Indian" Laws (1842)

Crim. Syndicalism

Criminal Syndicalism II

Criminal Syndicalism III

Criminal Syndicalism IV

Scottish Legal Terms

Scot. Legal Terms II

A. Johnson and J. Davis

Johnson Historiography

Johnson's Pardons

Johnson's Pardons II

Pinckney's Draft I

Pinckney's Draft II

Teaching Con. Law

Burr and Hamilton Duel I

Burr/Hamilton Duel II

Burr/Hamilton Duel III

Hamilton's "Confession"

Jefferson Loses I

Judiciary Act of 1789 I

Judiciary Act of 1789 II

Act of March 2, 1793 I

Act of March 2, 1793 II

Teaching Tax Law

Federal Property Tax 1798

Federal Prop. Tax 1798 II

Fed. Prop. Tax 1798 III

Aaron Burr--Treason Trial

Treason Trial of Burr II

Treason Trial of Burr III

Treason Trial of Burr IV

Treason Trial of Burr V

Election of 1800 I

Election of 1800 II

Election of 1800 III

Election of 1800 IV

Election of 1800 V

Where was A. Burr I?

Where was A. Burr II?

Election of 1800 VI

Judiciary Act of 1801 I

Judiciary Act of 1801 II

Judiciary Act of 1801 III

Events of 1801-02 (I)

Events of 1801-02 (II)

Judiciary Act of 1802

The Justices Discuss I

The Justices Discuss II

The Justices Discuss III

Marbury Background I

Marbury Background II

Marbury/Stuart I

Marbury/Stuart II

How Smart was Marshall?

Where Was Aaron Burr (II)?

Bill Long 10/28/07

Jan-Feb. 1801

II. The Federalists Descend on Burr (Jan. 1-Jan 15, 1801)

During the first two weeks of Jan. 1801, the Federalists decided that they would, in general, rather have Burr be President than Jefferson. They read his Dec. 16 letter to General Smith, published Dec. 30, in a way opposite the way that Smith intended it to be read. One Federalist concluded that Burr had not explicitly said he would not "accept the office of Preisdnet, if elected by the House of Representatives." And, in a weird reading twist, the Washington Federalist, which published his letter, said that these "patriotic" declarations of Burr made him even more fit to be President. And, if he was patriotic enough to decline competition at the appropriate time (when the numbers weren't known), how much more patriotic would he be to accept the verdict of the House of Representatives if they wanted to make him President?

These kinds of comments "in the air" in early January were precisely what the Republicans didn't want. Now the Federalists were seemingly jerking around both of their candidates when they, the Republicans, had won the election fair and square. Burr decided to pay General Smith a call in Philadelphia in the first week of January. Burr didn't leave any record of that meeting, but one of the people present at that meeting did. It records the following chilling scenario. As Lomask records in his biography of Burr, one of the attendees reported the following.

The Presidential election would now be thrown into the House. Even though the Federalists outnumbered the Republicans in the House (about 60-46), most of the Federalist representatives were concentrated in the North, and they only "controlled" six states. But this was enough to keep the Republican-controlled states (eight; nine were needed to elect a President; two delegations were divided in half--MD and VT) from electing either Jefferson or Burr. What was Mr. Burr's feelings about this grim reality? Burr responded in two ways. First, he was reported as saying:

"the House could and ought to make a choice, meaning that if they could not get Mr. Jefferson they could take him..." (Lomask, p. 277).

But then Burr was even more explicit.

"We cannot be without a president, our friends must join the federal (i.e, the Federalist) vote." When Hitchborn [the person present at the meeting with Smith and Burr] remarked that "we shall then be without a Vice-President; who is to be our Vice-President?" Burr answered, "Mr. Jefferson."

Oops. The cat was now out of the bag. It seemed now that Aaron Burr was not going to honor his earlier pledge. He was going to put into high gear his legendary political skills and manipulate someone from the "Republican" states (who would naturally want Jefferson as President) to join the "Federal" states. Maybe he could "buy off" one of the Congressmen from VT or MD, or in one of the states where the Congressional delegation was nearly split. The stakes were enormous, and Aaron Burr seemed to be doing what others had said he had been doing for the past 20 years: thinking only of Aaron Burr.

Well, how did things work out? Unexpectedly, as you will see.

III. Burr "Retreats" (Jan. 15- Feb. 17)

The Federalists seemed to be in the driver's seat. They drew up a list of "demands," which Alexander Hamilton and others circulated widely. The Federalists would be inclinced to support a candidate who supported three things: (1) A strong Navy; (2) Not getting rid of the bank of the United States; and (3) Not replacing lower-level Federalist appointees in the Government. Could the Federalists find one of the two (Burr or Jefferson) to tango with them?

Rather than this situation seeming to trigger in Burr the desire to "go for the jugular" and "cut a deal" with the Federalists, a curious thing happened. He retreated not just to NYC, where he lived in a large house overlooking the Hudson (Richmond Hill), but to Albany. The State Legislature, of which he was still a member, would convene late in January, and Burr wanted to be there when it opened. So he went to Ballston Spa, where he had gone earlier for some "spa treatments," before heading to Albany. But then, something else happened which kept Burr in Albany. His beloved daughter Theodosia, who was being courted by wealthy South Carolinian Joseph Alston, decided to get married to Alston on Feb. 2 in Albany. You might say that the reason they got married was because Burr was already in Albany, but the fact was that this wedding at the Dutch Reformed Church definitely kept Burr in town.

But as the days got closer to the opening of the electoral ballots in Washington DC by none other than President of the Senate Thomas Jefferson on Wed. Feb. 11, insistent letters began to arrive in Albany. 'Would Burr,' they wanted to know, 'accept the Federalist demands?' Apparently Albert Gallatin wrote a letter to Burr telling him that it would only take three votes of specific men in the NJ, NY and MD delegations to turn the election to him. Two of Burr's closest supporters visited him saying two things: (1) that Gen. Smith of MD, Mr. Linn of NJ and Mr. Edward Livingson of NY were ready to vote for him and thus send their state delegations into the "Burr" column (giving him 9 states; the six "secure" Federalist states for him were NH, MA, RI, CT, NJ, DE. Because Burr was from NY, was familiar with the Federalist economic interests and seemed to support it, they were willing to support him for President); and (2) that unless he hightailed it down to Washington DC right now (I suppose that meant right after his daughter's wedding), he had no chance of this happening.

Burr's friends thus told him in no uncertain terms that he had to get out of Albany fast and show up in DC before Feb. 11. He agreed with them but then, for reasons that no one has been able to ascertain, he packed his luggage and then....remained in Albany. One person said that at the last moment his "heart failed him."

Conclusion

Why do you think that Burr refused to go to DC at this crucial time? Many things can be said, but I will only suggest one thing. He refused to go because at the last moment, in searching his own heart, he realized that whatever conscience he had couldn't allow him to "steal" the election from Jefferson. He realized that he would be President but would be seen as a usurper, a hated interloper. He might have had some Federalist support, but they would probably desert him when he didn't please them down the road. He would have gained the whole world, but lost himself in the process.

As it was, he lost his own soul anyway. As suggested above, neither the Federalists nor Republicans forgave him for his temporizing in this two month period. His machinations had finally caught up with him. But the story of Aaron Burr was just beginning. He would take the nation through some enormously difficult times before he was completely discredited at age 51 (in 1807), the age when most men are in their prime. Burr is, to me, an endlessly fascinating person. And, in this instance, the fascination grows. But he didn't make the decision to assert himself at this crucial time. Thus, the election would go into the House with the result being uncertain. The next essay talks about the deadlock and how it was broken.

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Copyright © 2004-2008 William R. Long