Path to the Supreme Court
Two courts, two counts. On the Supreme Court of New York, between 1802 and 1807, Brockholst Livingston wrote, by Oyez's count, 149 opinions, and Donald Roper, in the Encyclopedia of the American Constitution, broke them down: 'In his four years of New York judicial tenure, Livingston dissented twenty times, concurred on fourteen occasions, and delivered twenty-four seriatim opinions.' On the Supreme Court of the United States, between 1807 and 1823, the count that Oyez carries is thirty-eight opinions for the Court, eight dissents and six concurrences in sixteen years, Roper's is smaller still: 'In fifteen terms he dissented but three times and delivered only five concurring opinions,' and Richard Harrison's, in the Princeton biographical dictionary, is 'thirty-nine major decisions, five concurring decisions, and three dissents.' The counts disagree at the margin and agree on the shape. Justia's one-line verdict is that 'he spent all of his 16 years on the Court in the shadow of Chief Justice John Marshall, writing no memorable opinions.' The man who fell silent in Washington had been, in Albany and New York, the loudest judge on the bench, a duelist, a pamphleteer, a Revolutionary staff officer and a prisoner of war, and the one thing he wrote that every American lawyer still reads was a dissent, on the other court, about a fox. Roper put the question the chapter has to answer: 'why was he comparatively silent?' The record on this site gives a number for it. Across the 558 cases the Supreme Court Database attributes to him, his share of liberal outcomes was 53.3 percent against a docket baseline of 54.6, a gap of one point, and he was in dissent in two percent of them. He had not been overwhelmed. He had agreed.
Henry Brockholst Livingston was born in New York on November 25, 1757, the son of William Livingston, who would be the first governor of the State of New Jersey, and Susanna French. He went to the College of New Jersey at Princeton, where James Madison was a contemporary, and took his degree in 1774; his sister married John Jay (§1) that year, and the brother-in-law would run through the next thirty years of his life like a thread that is first pulled tight and then cut. The war came before the law could. Richard A. Harrison's sketch in the Princeton biographical dictionary, the fullest account of the early life in print, has him at Princeton taking the freshman Latin prize, fined with his classmates for stealing turkeys, and giving the commencement oration of 1774 on 'Liberty'; in January 1776 with his uncle Lord Stirling's volunteers taking a grounded British frigate off Sandy Hook; then a captain and a major on the staff of General Philip Schuyler at Albany, whom the Federal Judicial Center records him serving from 1775 to 1777 and whose fall he took as his own cause. When Congress replaced Schuyler with Horatio Gates in August 1777 he stayed with the army on Benedict Arnold's staff, fought a duel with one of Gates's aides in September, and after Freeman's Farm, when Gates ordered him sent away, went of his own accord on September 26 rather than take orders from 'a man whom I abhor from my very soul.' Congress made him a lieutenant colonel on October 4, 1777. In 1779 he was given leave to go to Spain as private secretary to Jay, whom Congress had sent to Madrid to seek Spanish help for the war, and he stayed until 1782; Harrison has the bored young secretary falling in with William Carmichael and Lewis Littlepage, who 'did their best to undermine Jay,' and the minister's attempt to keep business in his brother-in-law's hands failing 'because Livingston divulged all confidential information to his friends.' He sailed from Cadiz on March 11, 1782, was taken two weeks out by a British privateer after destroying his papers, and was put in the provost jail in New York, the occupied city of his birth, until General Carleton released him on parole. He wrote to Washington to explain what he had done, and on July 3, 1782, from Newburgh, the commander in chief answered: 'I am much pleased with the narration you have given me of the part you acted while a prisoner in New York; and cannot conceive there was any impropriety in your giving a Parole as a Lt Col. in the Army, at a time when you had the commission in your pocket.'
He entered the Albany office of Peter Yates in August 1782, deplored the city, and told his father, when it was proposed that he study the full three years, 'I am too old,' and was excused; he was admitted in New York in the fall of 1783, took a room in Peter Keteltas's house on Wall Street, and, Harrison records, 'For the sake of distinction' dropped his first name and became Brockholst Livingston. Within a year he was in the first great case of the new state's courts. In Rutgers v. Waddington, argued in the Mayor's Court of New York in 1784, the Historical Society of the New York Courts records that Egbert Benson 'represented Mrs. Rutgers' and that 'the defendants were represented by Alexander Hamilton, Brockholst Livingston and Morgan Lewis,' with Mayor Duane delivering the court's decision on August 17, 1784. On December 2, 1784, he married his landlord's daughter, Catherine Keteltas, and his father, by Harrison's account, was furious at the match. The Historical Society's sketch has him a trustee and treasurer of Columbia from 1784 until his death and in the Assembly from 1786 for three years; Harrison dates the trusteeship and the treasurership to the college's incorporation in April 1787 and the Assembly seat to December 1788, one term, which he resented and did not seek again. Both are recorded here. On July 5, 1790, the day New York kept the fourteenth anniversary of independence, President Washington recorded in his diary that 'About One Oclk. a sensible Oration was delivered in St. Pauls Chapel by Mr. Brockholst Levingston on the occasion of the day,' whose tendency was 'to shew the different situation we are now in, under an excellent government of our own choice, to what it would have been if we had not succeeded in our opposition to the attempts of Great Britain to enslave us.' In 1785 a man tried to kill him. The reference works that carry the life record the attempt in a phrase and no more; the city put it in its minutes. On October 6, 1785, the Common Council of New York recorded that 'a most violent Assault hath last Night been committed on Brockholst Livingston' with 'Circumstances which evince an Intention of assassinating him,' that the peace of the city required 'the greatest Vigilence and Encouragement to discover the Perpetrators or Abettors of this wicked Design,' and resolved that if the Governor would issue a proclamation the Board would 'chear fully contribute 125 Dollars' to whoever should 'discover and bring to Justice the Perpetrator or Perpetrators or Abettor or Abettors of the said malignant & dangerous Act.' The minutes do not say who. Harrison, who has him that April abetting Littlepage's 'vicious attacks against his brother-in-law' in the pamphlet war that Jay won, offers a reason and no name: 'it was probably Livingston's role in the episode that led to an assassination attempt against him on October 5, 1785. He was not seriously injured.' The next volume of the same dictionary names the man suspected. W. Frank Craven's sketch of Abraham Smith of the Class of 1777, eldest son of the New York lawyer Thomas Smith and nephew both of the Loyalist chief justice William Smith and of Joshua Hett Smith, who in September 1780 had brought Arnold and André together in Thomas Smith's own house at Haverstraw, has it that Livingston 'apparently had attacked Abraham in the public press on October 3,' that two nights later he 'was so violently assaulted as to persuade the Common Council of the city that he was the victim of an attempted assassination,' and that 'Obviously, the finger of suspicion had pointed toward Smith.' On October 7 Smith published a broadside denying any part in so 'horrid an act' and offering a hundred and twenty-five dollars of his own toward the discovery of the real culprit, with a deposition signed by his parents and brothers that he had been at home that evening 'preparing his vindication for the press, until eleven o'clock.' Craven adds what the deposition did not: that Abraham had gone into British-held New York in 1779, that his father had told Governor Clinton in 1780 that the boy 'inclines to none of the learned Professions but to the life of a Soldier,' and that his signature that December, as witness to a will beside a captain of the King's American Legion, makes his having joined the King's forces 'a strong possibility.' What he wrote of Abraham Smith on October 3 has not been found, and nothing in Craven's account or the city's records charges Smith with anything. Suspected, and no more: that is where the record leaves it, and this chapter leaves it there.
The thread to Jay had begun to fray before the oration. In December 1785 Lewis Littlepage, who had been in Spain with Jay and had quarrelled with him, published in the Daily Advertiser a charge that dispatches had been withheld, and Brockholst, who had been Jay's secretary and had kept his own copies of what passed through the legation, was drawn into it. The John Jay Papers preserve a deposition Jay swore before Richard Morris on January 25, 1786, in which he complained that his brother-in-law 'thought it great nonsense or damned nonsense to keep such a Thing secret,' that 'he did calumniate this Deponent to Mr. Codman,' and that as secretary he 'did make and keep for his own private Use' copies of letters between Jay and the Spanish minister. The families patched what could be patched. The politics could not be. When Jay came home from London in 1795 with the treaty that bears his name, the first newspaper attack on it in New York was signed 'Decius,' and Decius was Brockholst Livingston. The editors of the Hamilton papers quote the opening of his first letter in the Argus of July 10, 1795: 'It was not difficult to foresee that the Treaty with Great Britain would excite much public discussion,' and those who 'originally opposed the embassy, early predicted, that it would terminate in a fruitless negociation, or in a treaty highly disadvantageous to this country.' Hamilton's answer was The Defence. The turn had come earlier than the treaty. Harrison's account is that 'Along with most of his relatives, Livingston had been an ardent supporter of the Constitution and a firm Federalist. That changed by 1791,' when the Livingstons set out to break Hamilton's hold on New York; in 1792 they were the most active opponents of Jay's run for governor, with Brockholst 'in the van of that opposition, which ended in Jay's loss to George Clinton.' The Livingston who had carried Jay's letters in Madrid had become, in the phrase the Washington diary's editors use, 'an active Antifederalist,' and Oyez's summary of the next decade is that he 'emerged as a notable anti-Federalist and helped Jefferson win over New York in 1800.'
The duel came out of the same newspaper. On May 8, 1798, the Argus, Thomas Greenleaf's Democratic paper, printed a squib on a meeting of Federalist young men held three days earlier, and among the boys it named was 'Master Jemmy Jones, another boy, and not quite sixty.' James Jones had not been at the meeting. He went to the printer, learned that the author was Brockholst Livingston, and found him that evening on the Battery. He caned him before a crowd and took hold of his nose; Joanne Freeman, in Affairs of Honor, describes the seizing of the nose as 'so serious an affront that it prompted a discussion about precisely how much of Livingston's nose had been grabbed.' They met at Hoboken on the afternoon of Wednesday, May 9, 1798, and fired together. The account William Kelby of the New-York Historical Society sent to the Pennsylvania Magazine of History and Biography in 1883 has it that Jones 'received a ball in his groin, which opened a main artery, and he died in a few minutes,' and that he was buried in St. Paul's churchyard the next evening. A coroner's jury, Harrison records, 'concluded that no charges should be brought.' Two years later, at the end of March 1800, he sat at the defense table with Hamilton and Burr in one of the first sensational trials of the republic, the prosecution of Levi Weeks for the murder of Gulielma Sands; the jury was out about five minutes and acquitted.
His reward for 1800 came in 1802, when Governor Clinton put him on the Supreme Court of Judicature, beside James Kent, and his law students, Washington Irving among them, had to find another master; that September, a widower, he married Ann Ludlow of Westchester. The five years on that court are the years on which his reputation as a judge ought to rest. Roper's summary is that 'Livingston's opinions during his five years on the New York court demonstrated legal erudition, style, and wit,' that 'The New York reports indicate that Livingston had a constant urge to express his thoughts,' and that the statistics 'only begin to indicate the battle on the New York court, largely between Livingston and James Kent, both of whom were first-rate jurists.' In Hitchcock v. Aicken (1803), dissenting, he argued, in Roper's words, that 'the full faith and credit clause should be interpreted broadly,' and ten years later the Marshall Court, with him on it, adopted the reasoning in Mills v. Duryee. And in 1805, in Pierson v. Post, he wrote the dissent. Lodowick Post, in Livingston's telling, 'with his own hounds, starts and hunts a fox on waste and uninhabited ground, and is on the point of seizing his prey' when Pierson kills it and carries it off; Daniel Tompkins for the majority held that 'mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.' Livingston began: 'This is a knotty point, and should have been submitted to the arbitration of sportsmen.' He noted that 'By the pleadings it is admitted that a fox is a "wild and noxious beast,"' called Pierson 'a saucy intruder, who had not shared in the honours or labours of the chase,' and disposed of the Roman law: 'Whatever Justinian may have thought of the matter, it must be recollected that his code was compiled many hundred years ago,' and 'if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by.' The majority's rule won and has held for two centuries. The dissent is why the case is taught.
William Paterson (§8) died on September 9, 1806. Jefferson, whose first appointment had been William Johnson (§14) of South Carolina two years before, gave Livingston a recess commission on November 10, 1806, sent the name to the Senate on December 13, and the Senate confirmed him by voice on December 17; the commission issued on January 16, 1807, and he took the oath on January 20. He was forty-nine. He was not assigned a circuit for more than a year, which Harrison reads as part of the administration's design to delay the Connecticut libel cases it was steering until the Court had a Jeffersonian majority; from March 9, 1808, he rode the Second Circuit, which meant New York, and it was on circuit, in the prize, insurance and mercantile cases of a port at war with Europe's commerce, that most of his judging was done. A third marriage, to Catherine Seaman Kortright, followed the death of the second wife; there were, by Harrison's count, eleven children of the three.
On the Supreme Court
The silence has an explanation, and Roper gives most of it. 'By the time of Livingston's appointment, Marshall's practice of having one Justice deliver a single opinion for the Court was settled. The Justices, moreover, willingly stifled their differences, save on questions of great moment, usually constitutional.' A judge who had dissented twenty times in four years in Albany found a bench where dissent was a breach of manners, and where, on the commercial questions that were his subject, he had no quarrel to pick: 'Apparently, Livingston's policy preferences blended well with the Marshall Court's general mercantile orientation.' Roper adds the thing the reports cannot show: 'Another reason that Livingston did not join Johnson and make plural the "first dissenter" may have been that Livingston got along with the rest of the Court much better than Johnson did.' Harrison, reading the letters to Story, his 'closest friend on the court,' finds in them 'a gradual adoption of Marshall's stand on judicial review and a shift back toward the standards of his earlier Federalism': the New York judge who had been 'at first, opposed to the principle of judicial review' became, in Washington, one of its votes. The Court's own memorandum on his death would say where his attention had gone: 'His genius and taste had directed his principal attention to the maritime and commercial law; and his extensive experience gave to his judgments in that branch of jurisprudence a peculiar value.' Oyez puts the same point as reputation: he 'was seen as the unofficial expert on commercial law until the arrival of Justice Story.'
What the cost of agreement looked like is visible in one case. In 1817, on circuit, in Adams v. Storey, he had, in Roper's words, 'emphatically sustained' New York's insolvency law of 1811. In Sturges v. Crowninshield (1819) the Court struck the same law down as applied to a debt contracted before it passed, and Livingston joined. Roper's reading is that 'It seems likely that Marshall did not wish to say in his opinion that the states had concurrent power to pass bankruptcy or insolvency laws, but he did,' and that the concession was 'probably in response to Livingston's urging'; his conclusion is that 'Livingston's main role on the Marshall Court and in the development of constitutional jurisprudence was that of a compromiser.' Off the bench he kept his opinions: in 1812, by Harrison's account, he opposed the war with England, took a public rebuke from Henry Clay for it, and subscribed twenty thousand dollars to the loans that paid for it anyway, and after the burning of the Capitol he urged the Court to sit somewhere other than Washington in 1815, and was overruled. The same term as Sturges produced Dartmouth College v. Woodward, and the report records the whole of his contribution to the most consequential contract clause case of the era in one line: 'Livingston, J., concurred, for the reasons stated by the Chief Justice, and Justices Washington and Story.' Oyez adds that 'His time on the bench included two acts that violated judicial ethics': that he told John Quincy Adams how Fletcher v. Peck would come out before it was announced, and that in Dartmouth College 'he was influenced by an extrajudicial communication with his former New York colleague, Chancellor James Kent.' Both are Oyez's telling; Roper does not mention either, and this chapter reports them as they stand.
The year he spoke was 1820. In The Josefa Segunda, decided at the February term, he wrote for the Court. A Spanish brig carrying Africans from the coast to Cuba had been taken by a Venezuelan privateer in February 1818 and brought into the Mississippi, where the customs officers seized her in April; the claimants said she had come in from distress, not to land slaves in breach of the act of 1807. Livingston put the burden where it belonged: 'When any act is done which of itself and unexplained is a violation of law,' and the party 'resorts to the plea of necessity or distress, the burden of proof is' on him, and he quoted the instruction that gave the claim away, 'Maintain always your declaration of being forced into port.' The decree of forfeiture was affirmed with costs. The same term, in United States v. Smith, the Court had held, in an opinion by Joseph Story (§18), that Congress could punish piracy 'as defined by the law of nations' without writing the definition into the statute, and Livingston, alone, had refused. 'In a case affecting life, no apology can be necessary for expressing my dissent from the opinion which has just been delivered.' The Constitution had given Congress the power to define piracy, and 'The writers on public law do not define the crime of piracy with precision and certainty'; the accused and the jury ought not to be sent to the treatises for the elements of a capital crime. 'Upon the whole, my opinion is, that there is not to be found in the act that definition of piracy which the constitution requires.' It is the one dissent of his sixteen years that a reader can still feel the weight of, and it was on the side of the man to be hanged.
The Supreme Court Database, whose early-Court series this site carries back to 1791, records 558 cases in which he sat and codes 353 of them by direction. His liberal share across them is 53.3 percent; the baseline of the docket he sat on is 54.6; the gap is 1.3 points, and it runs the conservative way, though at that size it runs no way at all. He is coded in dissent in 2.0 percent of his cases, against a baseline of 1.3 for the Court around him. The modern instruments on this site, the liberal and gap rankings among thirty-three justices, the agreement matrix, the drift series, begin in 1946 and do not reach him, so there is no closest colleague to name and no answer to the question the later chapters ask, who moved. For a justice who sat from Jefferson's second term to Monroe's, the fingerprint says the one thing the reports and Roper say: on the docket he sat on, he and the Court were the same judge.
He fell ill in Washington in the winter of 1823, during the term. On February 28 Story broke off a letter to Nathaniel Williams: 'I have been called away. Judge [Livingston] is more ill, I fear very ill.' The term closed, and on March 18, 1823, a few days later, he died in Washington, in his sixty-sixth year. When Wheaton published the term's reports he set a memorandum before the cases: 'On the 18th of March, a few days after the close of the present Term, died the Honourable Brockholst Livingston, an Associate Justice of this Court, in the sixty-sixth year of his age.' It remembered the soldier who 'had served his country with distinguished military reputation during the war of the revolution,' the advocate 'fruitful in invention, and possessing a brilliant and persuasive elocution,' and the judge: 'On the bench, his candour and modesty were no less distinguished, than his learning, acuteness, and discrimination.' It closed on 'the character of an upright, enlightened, and humane judge, a patriotic citizen, and a bright ornament of the profession,' and then, in a Latin sentence, that he is to be counted in the number of the orators, and was in all else accomplished and elegant. William Wetmore Story, printing his father's letters in 1851, added a note: 'Mr. Justice Livingston did not survive this illness, and his death occasioned the first breach in the Judicial circle of the Supreme Court, from the time that my father became a Judge,' and it 'deprived him of a loved and valued friend.' Monroe gave the seat to another New Yorker, Smith Thompson (§19), a kinsman by marriage. Livingston was buried in New York; the family account has him moved, with his father and mother, from the vault at Trinity to Green-Wood in Brooklyn on May 7, 1844, the date Green-Wood itself gives for the governor.
The book this chapter continues closed its Livingston chapter with a bibliography that opens by admitting the problem: his career runs through the Revolution, the first parties, the making of an American commercial law and the Marshall Court, 'Yet notwithstanding the historic vantage point afforded by his life and times, as well as his unusual character and personality, his biography is yet to be written.' Fifty-seven years later it still has not been. What has changed is the reading. The dissent in Pierson v. Post is assigned to nearly every American law student, which means that this justice, who wrote fifty-two opinions in sixteen years and no memorable one, is read by more students every autumn than any of the colleagues he agreed with. The Court's memorandum said he was to be counted among the orators. The record says he was counted, for sixteen years, among the votes; and the site's own number, a gap of one point, is the measure of how completely a man who had dissented twenty times in four years chose not to.
The Voting Record
How Livingston voted in the 558 cases the Supreme Court Database records from the 1807 term through the 1823 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Where Livingston sat among the colleagues on the same bench — and whether that Court divided clearly enough for the question to have an answer — is laid out Court by Court. See this Court →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Pierson v. Post (N.Y. Supreme Court)
1805Holding · Mere pursuit gives no property right in a wild animal; capture or mortal wounding does.
Role · Livingston, then a New York judge, dissented — he would have awarded the fox to the pursuing huntsman.
The first-possession chestnut that has opened Anglo-American property courses for two centuries; the majority's rule won, but Livingston's wit is why students remember the case.
Read the opinion →The Josefa Segunda
1820Holding · A slave ship brought into New Orleans was forfeit under the 1807 act barring the slave trade; a plea of distress did not excuse the voyage.
Role · Livingston wrote for the Court.
One of the early enforcement teeth of the federal slave-trade ban.
Read the opinion →United States v. Smith
1820Holding · Congress may punish piracy 'as defined by the law of nations' without spelling out the definition in the statute.
Role · Livingston dissented alone: a capital crime, he insisted, must be defined by Congress itself.
A lonely early statement of legislative precision in capital cases — 'in a case affecting life, no apology can be necessary for expressing my dissent.'
Read the opinion →Go Deeper
There is no biography of Brockholst Livingston. The best sustained account of his life is the Livingston chapter in Friedman & Israel's The Justices of the United States Supreme Court (Chelsea House, 1969 and later editions) — the ceiling of what exists rather than the floor. The modern anchor is David Lynch's 2018 study of the circuit work, where Livingston finally gets serious scholarly treatment.
The Bookshelf
With no biography in existence, the standard reference chapter is the best sustained account of the life: the Liberty Hall upbringing, Saratoga, the Spanish mission with Jay, the politics, the duel, the New York bench, and the quiet Supreme Court years. Chelsea House; later editions.
The rare modern scholarly book in which Livingston is a principal subject. Lynch follows four justices through their circuit work — where the real judging of the era happened — and gives Livingston's commercial and admiralty jurisprudence its most serious treatment ever. The essential corrective to his reputation as a cipher: on circuit in New York, he helped build American commercial law. Hart Publishing; cited by the FJC as the leading study.
The scholarly study of the dynasty that produced him — the manor, the merchant network, and the family culture that put Livingstons on both sides of every New York quarrel for a century. Brockholst is a minor figure here, but the world that made him is the book's whole subject. Cornell University Press.
The institutional history of the Court where Livingston spent sixteen largely silent years — including its portrait of him as the boardinghouse's best company: the wit and storyteller of the Marshall Court's dinner table, whatever the United States Reports failed to record. Oxford University Press.
The most widely read thing Livingston ever wrote — composed on New York's high court, two years before his federal appointment. The case asks who owns a wild fox: the hunter in pursuit, or the interloper who kills it. His witty, hunt-sympathetic dissent has been assigned to essentially every American law student for two centuries — meaning this obscure justice has more readers every semester than most of the Marshall Court combined. Free everywhere.
The only dedicated scholarly article on Livingston as a justice — his private letters to Joseph Story, which are among the few windows into the Marshall Court's internal life from a justice who left almost no judicial paper trail.
The fullest modern account of Jefferson's three appointments — Johnson, Livingston, Todd — and what the president hoped each would do to Marshall's Court. By the author of the standard history of Supreme Court appointments.
A book-length study of the 1805 fox-hunt case every law student still reads — decided by the New York Supreme Court with Livingston writing his most famous (and funniest) dissent, in defense of the hunter. Fernandez recovered the lost court record and gives Livingston his fullest modern portrait along the way. Cambridge University Press.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The book Friedman and Israel send the reader to for want of a biography of Brockholst: Dangerfield's life of the cousin, the Chancellor, in which, as Dunne's bibliography puts it, 'the best picture of Brockholst Livingston is had in the fragmentary and episodic asides.' 560 pages, with a bibliographical note at 441-450. Borrow it at the Internet Archive; not read for this chapter.
The family's own history of itself, by a descendant, which Dunne's bibliography offers as 'A similar profile' to Dangerfield's for the judge: the manor, the line from the first Robert Livingston through the Revolution, with a chapter on the family's part in the war and a portrait of Judge Brockholst Livingston at page 248. Public domain, free at the Internet Archive; only the front matter was read for this chapter.
Where, by Dunne's bibliography, 'A view of his days in Spain and his beginnings in New York may be found': the life of Lewis Littlepage (1762-1802), the Virginian who went to Madrid with Jay, quarrelled with him, and in December 1785 published the charges that drew Brockholst, Jay's secretary, into the public quarrel that the Jay Papers preserve. 458 pages by the Archive's count, with a bibliography. Borrow it at the Internet Archive; not read for this chapter.
The standard party history of the state, which Dunne's bibliography says 'cannot be written without some mention of him' and 'will contain occasional references': the Clintons, Livingstons, Burr and Hamilton through the elections that Brockholst's family helped decide. Volume one runs from 1774 to 1832. Public domain, free at the Internet Archive; not read for this chapter.
The one modern essay that takes the silence as a problem to be explained. Roper counts the New York years (twenty dissents, fourteen concurrences, twenty-four seriatim opinions in four years) against the Supreme Court years (three dissents and five concurrences in fifteen terms), rules out intimidation ('precludes any notion that he was overwhelmed by John Marshall and associates'), and finds the answer in the Marshall Court's settled practice and in temperament: 'Livingston was a good team player, and our constitutional jurisprudence may be poorer for it.' Sturges v. Crowninshield against his own Adams v. Storey is the worked example. Free at encyclopedia.com.
The study of the honour code in the politics of the 1790s, in which the Livingston-Jones affair of May 1798 is an example of how an insult became a killing: the Argus squib, the caning on the Battery, and, in Freeman's words, 'so serious an affront that it prompted a discussion about precisely how much of Livingston's nose had been grabbed.' xxiv and 376 pages. Borrow it at the Internet Archive; the page on the duel was read as quoted by Josh Blackman, not on the book itself.
The fullest account of the duel that this chapter could reach, from the librarian of the New-York Historical Society in 1883, out of the newspapers of May 1798: the Argus of May 8 and its 'Master Jemmy Jones, another boy, and not quite sixty'; Jones at the printer's, then on the Battery; Hoboken on the afternoon of Wednesday, May 9; both fired at once, and Jones 'received a ball in his groin, which opened a main artery, and he died in a few minutes'; the burial at St. Paul's the next evening. Read in a genealogist's transcription; the magazine's page was not reached.
The Court's own notice, a page of Wheaton's front matter, and the earliest character of the man as a judge: the soldier who 'had served his country with distinguished military reputation during the war of the revolution,' the advocate 'fruitful in invention, and possessing a brilliant and persuasive elocution,' the judge whose 'genius and taste had directed his principal attention to the maritime and commercial law,' and the close, 'an upright, enlightened, and humane judge, a patriotic citizen, and a bright ornament of the profession,' with a Latin sentence counting him among the orators. Free at govinfo.
For Livingston, two pages of the first volume: Story's letter to Nathaniel Williams from Washington on February 28, 1823, broken off with 'I have been called away. Judge [Livingston] is more ill, I fear very ill,' and the editor's note that 'Mr. Justice Livingston did not survive this illness, and his death occasioned the first breach in the Judicial circle of the Supreme Court, from the time that my father became a Judge,' one that 'deprived him of a loved and valued friend.' Pages 424-425. Public domain, free at the Internet Archive.
The only contemporary record of the 1785 attempt on his life that this site has reached, and the one the reference works compress to a phrase: at its meeting of October 6, 1785, the Board recorded that 'a most violent Assault hath last Night been committed on Brockholst Livingston' with 'Circumstances which evince an Intention of assassinating him,' and resolved, if the Governor would proclaim a reward, to 'chear fully contribute 125 Dollars' toward the discovery of 'the Perpetrator or Perpetrators or Abettor or Abettors of the said malignant & dangerous Act.' Nothing later in the volume records a discovery. Public domain, free at the Internet Archive.
The fullest account of the early life in print and the closest thing to the biography Dunne said was yet to be written: Princeton (the Latin prize, the turkeys, the 1774 oration on 'Liberty'), Schuyler's staff and the Gates quarrel ('a man whom I abhor from my very soul'), Spain with Jay told against him ('Livingston divulged all confidential information to his friends'), the capture at sea, the name shortened 'For the sake of distinction,' the 1785 attempt read as the price of the Littlepage pamphlet war, the turn from Federalism dated to 1791, the 1798 duel and the coroner's jury, Clinton's 1802 appointment, the Court years with the count of thirty-nine, five and three, the letters to Story, the War of 1812, three marriages and eleven children; then two pages of sources down to the manuscript letters at the Massachusetts Historical Society. Print only; not free online.
Four pages on the other man in the 1785 affair, and the only place it is told: Abraham Smith, eldest son of the lawyer Thomas Smith and nephew of the Loyalist chief justice William Smith and of Joshua Hett Smith of the Arnold-André meeting (held, Craven notes, in Thomas Smith's own Haverstraw house), who went into British-held New York in 1779 and may have joined the King's forces. Livingston 'apparently had attacked Abraham in the public press on October 3'; two nights later he was assaulted; 'Obviously, the finger of suspicion had pointed toward Smith,' whose broadside of October 7 denied any part in so 'horrid an act,' matched the city's reward, and carried his family's deposition that he was at home 'preparing his vindication for the press, until eleven o'clock.' Nothing further; Smith practised law in the city until about 1827. Print only.
The Reading Path
A researched route through the literature — in order.
- 1.Friedman & Israel — for the best sustained account of the life
- 2.Lynch — for the modern scholarship — Livingston as a serious commercial-law judge on circuit
- 3.Pierson v. Post — for the dissent every law student reads — five minutes well spent
- 4.White — for the Marshall Court's table-talk raconteur and the consensus culture that silenced him
- 5.Kierner — for the Livingston dynasty and the world of Liberty Hall
Where the Papers Are Kept
The New York State Library's "Livingston, Henry, Collection" (SC19687, two boxes, half a cubic foot, 1751-1883) is not his: it is a pooled file of eight different Livingstons named Henry, of whom the justice is one. What survives of him in quantity survives inside his brother-in-law's papers — the John Jay Papers at Columbia, digitised and free, where the Jay-Brockholst correspondence runs to many documents. Beyond that, scatter: Yale's Samuel Blachley Webb papers, a letter to Monroe in the Library of Congress, and appearances throughout the Washington, Hamilton, Jefferson and Madison editions. Visit →
Online Resources
Ideas for Further Research
- The Jay connection is the untold story: brother-in-law, private secretary in Spain, then political enemy who helped burn Jay's reputation over the Treaty — and Jefferson's reward followed. A "From Liberty Hall to the Bench" essay could link the Jay and Livingston pages.
- A duelist who killed a man, a Saratoga staff officer, a British prisoner, Kent's colleague, the Pierson v. Post dissenter — and no biography. The life is more vivid than the judicial record, which may be exactly why no legal historian has claimed it.