When the sceptre passed from Federalist to Republican in 1801, Hamilton gave himself to his profession with renewed zeal, earning fifteen thousand dollars a year, and a reputation as a lawyer scarcely surpassed by Daniel Webster. "In creative power Hamilton was infinitely Webster's superior," says Chief Justice Ambrose Spencer, before whom both had practised.[132] Erastus Root, possibly looking through the eyes of Theodosia, thought Burr not inferior to Hamilton as a lawyer, although other contemporaries who knew Burr at his best, regarded him as an indefatigable, tireless, adroit lawyer rather than a profound and learned one. This put him in a different class from Hamilton. As well might one compare Offenbach with Mozart as Burr with Hamilton.
Hamilton journeyed to Albany in February, 1804, to argue the case of Harry Croswell, so celebrated and historic because of Hamilton's argument. Croswell, the editor of the Balance, a Federalist newspaper published at Hudson, had been convicted of libelling President Jefferson. Chief Justice Lewis, before whom the case was originally tried, declined to permit the defendant to prove the truth of the alleged libel. To this point, in his argument for a new trial, Hamilton addressed himself, contending that the English doctrine was at variance with common sense, common justice, and the genius of American institutions. "I have always considered General Hamilton's argument in this cause," said his great contemporary, Chancellor Kent, "as the greatest forensic effort he ever made. He had come prepared to discuss the points of law with a perfect mastery of the subject. He believed that the rights and liberties of the people were essentially concerned. There was an unusual solemnity and earnestness on his part in this discussion. He was at times highly impassioned and pathetic. His whole soul was enlisted in the cause, and in contending for the rights of the jury and a free press, he considered that he was establishing the surest refuge against oppression. He never before in my hearing made any effort in which he commanded higher reverence for his principles, nor equal admiration of the power and pathos of his eloquence."[133] Such a profound impression did his argument make, that, although the Court declined to depart from the settled rule of the common law, the Legislature subsequently passed a statute authorising the truth to be given in evidence, and the jury to be the judges of the law as well as of the facts in libel cases.
It was during the argument of this case at Albany that Hamilton, joining his Federalist friends at Lewis' Tavern, gave his reasons for preferring Chancellor Lansing to Aaron Burr for governor. There was something new in these reasons. In 1801 he preferred Jefferson to Burr because the latter, as he wrote Gouverneur Morris, "has no principles, public or private; could be bound by no argument; will listen to no monitor but his ambition; and for this purpose will use the worst portion of the community as a ladder to climb to permanent power, and an instrument to crush the better part. He is sanguine enough to hope everything, daring enough to attempt everything, wicked enough to scruple nothing."[134]
Nothing had occurred in the intervening years to change this opinion, but much was now happening to strengthen it. A Federalist faction in New England, led by Pickering in the United States Senate and Roger Griswold in the House, thought a dissolution of the Union inevitable to save Federalism, and for months the project had been discussed in a stifled, mysterious manner. "It (separation) must begin in Massachusetts," wrote Pickering to George Cabot, "but New York must be the centre of the confederacy."[135] To Rufus King, Pickering became more specific. "The Federalists have in general anxiously desired the election of Burr—and if a separation should be deemed proper, the five New England States, New York and New Jersey, would naturally be united."[136] But King disapproved disunion. "Colonel Pickering has been talking to me about a project they have for a separation of the States and a northern confederacy," he said to Adams of Massachusetts; "and he has also been this day talking with General Hamilton. I disapprove entirely of the project, and so, I am happy to tell you, does General Hamilton."[137] But the conspirators were not to be quieted by disapproving words. Griswold, in a letter to Oliver Wolcott, declared Burr's election and consequent leadership of the Federalist party "the only hope which at this time presents itself of rallying in defence of the Northern States,"[138] and in order not to remain longer inactive, he entered into a bargain with Burr, of which he wrote Wolcott fully. Wolcott sent the letter to Hamilton.[139]
It was plain to Hamilton that these timid conspirators wanted a bold chief to lead them into secession, and that since he would have nothing to do with them, they had invoked the aid of Aaron Burr. Thus, to his former desire to defeat Burr, was now added a determination to defeat incipient disunion, and in the Lewis Tavern conference he argued that Burr, a Democrat either from principle or calculation, would remain a Democrat; and that, though detested by leading Clintonians, it would not be difficult for a man of his talents, intrigue and address, possessing the chair of government, to rally under his standard the great body of the party, and such Federalists as, from personal goodwill or interested motives, may give him support. The effect of his elevation, with the help of Federalists would, therefore, be to reunite, under a more adroit, able and daring chief, not only the now scattered fragments of his own party, but to present to the confidence of the people of Federalist New England the grandson of President Edwards, for whom they had already a strong predilection. Thus he would have fair play to disorganise the party of Jefferson, now held in light esteem, and to place himself at the head of a northern party favouring disunion.
"If he be truly, as the Federalists have believed, a man of irregular and insatiable ambition," continued Hamilton, "he will endeavour to rise to power on the ladder of Jacobin principles, not leaning on a fallen party, unfavourable to usurpation and the ascendancy of a despotic chief, but rather on popular prejudices and vices, ever ready to desert a government by the people at a moment when he ought, more than ever, to adhere to it. On the other hand, Lansing's personal character affords some security against pernicious extremes, and, at the same time, renders it certain that his party, already much divided and weakened, will disintegrate more and more, until in a recasting of parties the Federalists may gain a great accession of force. At any rate it is wiser to foster schism among Democrats, than to give them a chief, better able than any they have yet had, to unite and direct them."[140]
Within a week after the Lewis Tavern conference Burr's chances brightened by the sudden withdrawal of Lansing, because the latter would not allow the Clintons to dictate his appointments. This was a great surprise to Republicans and a great grief to Hamilton—the more so since it was not easy to find an available successor. The mention of DeWitt Clinton raised the cry of youth; Ambrose Spencer had too recently come over from the Federalists; Morgan Lewis lacked capacity and fitness. Thus the contention continued, but with a leaning more and more toward Morgan Lewis, a brother-in-law of Chancellor and Edward Livingston.
Lewis' youth had promised a brilliant future. He graduated with high honours at Princeton, and when the guns of Bunker Hill waked the country he promptly exchanged John Jay's law office for John Jay's regiment. In the latter's absence he retained command as major until ordered to the northern frontier, when he suddenly dropped into a place as assistant quartermaster-general, useful and important enough, but stripped of the glory usually preferred by the hot blood of a gallant youth. In time, the faithful, efficient quartermaster became a plodding, painstaking lawyer, a safe, industrious attorney-general, and a dignified, respectable judge; but he had not distinguished himself, nor did he possess the striking, showy characteristics of mind or manner often needed in a doubtful and bitterly contested campaign. Heretofore place had sought him by appointment. He became attorney-general when Aaron Burr gave it up for the United States Senate; and a year later, by the casting vote of Governor Clinton, the Council made him a Supreme Court judge. In 1801 the chief-justiceship dropped into his lap when Livingston went to France and Lansing became chancellor, just as the chancellorship would probably have come to him had Lansing continued a candidate for governor. In 1803 he wanted to be mayor of New York.
But with all his ordinariness no one else in sight seemed so available a candidate for governor. The Livingstons, already jealous of DeWitt Clinton's growing influence, secretly nourished the hope that Lewis might develop sufficient independence to check the young man's ambition. On the other hand, DeWitt Clinton, equally jealous of the power wielded by the Livingstons, thought the Chief Justice, a kind, amiable man of sixty, without any particular force of character, sufficiently plastic to mould to his liking. "From the moment Clinton declined," wrote Hamilton to Rufus King, "I began to consider Burr as having a chance of success. It was still my reliance, however, that Lansing would outrun him; but now that Chief Justice Lewis is his competitor, the probability, in my judgment, inclines to Burr."[141]