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Henry Brockholst Livingston

Henry Brockholst Livingston came from a powerful New York family. He was educated at Princeton alongside JAMES MADISON, had political ties to THOMAS JEFFERSON, and enjoyed rapid advancement through the military, private practice, and the bench. From 1802 to 1807, Livingston served on the New York Supreme Court. An outspoken anti-Federalist in his youth, Livingston grew more conservative in later life. He served as an associate justice on the U.S. Supreme Court from 1807 until his death in 1823.

Livingston was born November 25, 1757, in New York City. Established in New York in the late seventeenth century, his family also included other notable public figures: Philip

Henry B. Livingston.

Livingston (1716–78) signed the Declaration of Independence, William Livingston (1723–90) was New Jersey's first governor, ROBERT R. LIVINGSTON (1746–1813) negotiated the LOUISIANA PURCHASE, and EDWARD LIVINGSTON (1764–1836) served in Congress and as SECRETARY OF STATE. At an early age, Livingston had several outstanding accomplishments in military service. He was commissioned a major at age nineteen. At twenty-two he was a secretary in Spain to his brother-in-law, U.S. minister JOHN JAY. At twenty-five he helped negotiate the end of the Revolutionary War.

Livingston's legal career advanced in similar fashion. After being admitted to the New York bar in 1783, he was soon in private practice working alongside ALEXANDER HAMILTON and AARON BURR. He entered politics in 1786 when he was elected to the New York Assembly. In 1789 he delivered the first Independence Day speech in Saint Paul's Church, before Congress, President GEORGE WASHINGTON, and other distinguished leaders. During this period he became a fierce anti-Federalist and sided with Jefferson.

Livingston's outspokenness in public and in print led to conflict. He survived an assassination attempt in 1785, and in 1798, after being punched in the nose by an angry Federalist, he killed the man in a duel. But his politics also brought rewards. In return for helping Jefferson win the state of New York in the 1800 presidential election, Livingston was appointed to the New York Supreme Court.

In four years on the New York bench, Livingston gained high distinction. He wrote 149 opinions—a prodigious number—many concerning his specialty, COMMERCIAL LAW. He tended to favor business interests at a time when capitalism was bustling. In civil liberties he took the traditional view that truth and GOOD FAITH were not defenses against a charge of seditious libel. He was also a practitioner of the art of judicial humor. His most-quoted opinion is his dissent in the so-called Foxhunt case, Pierson v. Post, 3 Cai. R. 175 (1805), which dealt with the question of who should be entitled to claim a fox—the hunter who has pursued it up to the end, or another hunter who snatches it at the last moment. "This is a knotty point," wrote Livingston, "and should have been submitted to the ARBITRATION of sportsmen."

In 1807 President Jefferson made Livingston his second appointee to the U.S. Supreme Court. Under Chief Justice JOHN MARSHALL, Livingston's anti-Federalism was tempered, and he generally followed the chief justice's lead. Compared with the stream of opinions he issued in New York, his output of thirty-eight majority opinions, eight dissents, and six concurrences was minimal. He continued to write chiefly on commercial and maritime law; in the latter area, he was a specialist in PRIZE LAW, a now antiquated area of JURISPRUDENCE that dealt with the capture of goods at sea during wartime. Early Supreme Court justices, in addition to their duties on the Court, routinely travelled the circuit to which they were assigned and presided over its cases. Most scholars have found Livingston's circuit court decisions more notable than his opinions in Supreme Court cases, especially Adams v. Storey, 1 Fed. Cas. 141 (C.C.D.N.Y. 1817) (No. 66), in which he upheld New York's insolvency law against a challenge that it violated the Constitution's Contracts Clause and federal BANKRUPTCY jurisdiction.

Livingston suffered two ethical lapses while on the Supreme Court. He told JOHN QUINCY ADAMS the Court's decision in FLETCHER V. PECK, 10 U.S. (6 Cranch) 87, 4 L. Ed. 629 (1810) before it was announced, when Adams was a counsel on the case. And while the Court was deciding DARTMOUTH COLLEGE V. WOODWARD, 17 U.S. (4 Wheat.) 518, 4 L. Ed. 629 (1819), he reportedly received extrajudicial information about the case from a former colleague.

Neither incident seems to have damaged his career. He continued to serve on the Court until his death on March 18, 1823, in Washington, D.C.


Friedman, Leon, and Fred L. Israel, eds. 1969. The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions. New York: Chelsea House.

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