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The New York Packet publishes “On the Authority of the Judiciary” on March 11th, 1788. It’s signed Publius.
Alexander reads it with a certain amount of perturbation. He’s been occupied writing on the executive branch and had meant to make a start on the judiciary in April. The style doesn’t read like Madison’s usual, but John Jay is still in the throes of illness and hasn’t been able to write since rallying to start “The Powers of the Senate,” which Alexander had concluded.
Alexander, logically, congratulates Madison at the next meeting of the assembly. Madison looks at him like he’s mad, which isn’t terribly different from how Madison looks at Alexander in general, so it’s obliging that he adds, “I did not write that essay, sir.”
“Didn’t write it?” Alexander asks, surprised. “But Jay is too ill to even answer his correspondence. Sarah has forcibly taken it over for the foreseeable future.”
“Nonetheless,” Madison says, quelling, and wanders away to speak to John Adams, a place he well knows Alexander is unwilling to follow.
Alexander reads the essay again that night, by candlelight. While he’s somewhat nettled to have his own planned writings on the judiciary superseded, it’s a comprehensive enough extension of the Constitution and the tone is persuasive.
Persuasive. Alexander feels his spine go straight. Looking at the page, he notes that the essay is only seven paragraphs long. Shorter by far than the last one Alexander wrote, concerning the regulation of Congressional election, and had been obliged to split into thirds for publication. It could certainly be called succinct.
But it’s a foolish idea. Burr had rejected Alexander’s proposal to defend the Constitution quite conclusively. Alexander remembers the laugh in Burr’s voice, the feeling of the wood grain of the door beneath his palm after it was closed in his face.
He writes to Sarah Jay, to be sure, and keeps a weather eye on Burr, oddly pale and unsmiling, but no less a force in the courtroom.
Sarah’s reply in the negative arrives by post at the same time as the latest New York Packet, with an essay on trial by jury that Alexander is certain Madison will again deny. Having heard Burr say, blasphemously, that law is whatever is boldly asserted and plausibly maintained, Alexander thinks he’s restrained his cynicism tolerably well. But then, an excess of restraint, rather than a lack, has always been Alexander’s grievance against Burr.
Alexander barges into Burr’s office, arms laden with witness statements as a shallow pretext, to confront him.
Burr makes it oddly easy, in a way he never has before. He jumps up from his desk like a scalded cat and knocks over an inkpot. He manages to catch it before it shatters against the floor, but in consequence, fails to cover the parchment he’s been writing on. Alexander reads, if reason rules, all is quiet, composed, and benign before Burr sweeps it away, his sleeve smearing the wet ink.
“You changed your mind,” Alexander says, delighted by the proof. “Burr, why didn’t you just tell me?”
“I don’t know what you mean, sir,” Burr says. His face is at once inscrutable and subtly terrified.
Alexander sets down his papers and reaches out a hand to clasp Burr’s shoulder. “Burr,” he murmurs sadly, “when I said that I wished you to talk more, I didn’t mean that I wished you to smile less.”
Burr’s lips twist, as if he means to smile, to prove that nothing’s changed, but it comes out closer to a grimace. “Well,” he says, succinct in this too.
“Won’t you tell me why?” Alexander asks.
Burr rescues his parchment and blots at the smudged ink. He isn’t looking at Alexander when he says, “Perhaps I've been waiting for a moment that will never come. In any case, what does it hurt me to publish under your pseudonym? I’m sure no one else will suspect my hand in it.”
Alexander considers the shrewd turn of phrase and doesn’t wonder that many of the opposing counsel Burr has soundly trounced would disagree. Saying so, however, would only be to his own detriment.
“We’ve published seventy five essays so far. With your assistance, I should like to try for a round hundred,” Alexander says instead, the new possibility of it making his fingers twitch toward the quill.
Burr tilts his head, elegant and mocking, but gently so. “Of course you would,” he says, and puts ink to paper to begin.