(b. New York City, 25 Nov. 1757; d. Washington, D.C., 18 Mar. 1823; interred Trinity Church churchyard, New York; remains transferred to Green‐Wood Cemetery, Brooklyn, in 1844), associate justice, 1807–1823. Although born in New York City, this son of William Livingston and Susanna (French) Livingston grew up in New Jersey, where his father served as governor. Young Livingston attended the College of New Jersey (Princeton) with James Madison. A patriot, he was commissioned captain in the Continental Army and served on the staffs of Generals Schuyler, St. Clair, and Arnold. He went to Spain as private secretary to John Jay, his brother‐in‐law, with whom he was often at odds. In 1782 he was captured by the British, paroled, and began the study of law.
Livingston practiced law in New York and dropped the “Henry,” thereby avoiding confusion with several cousins. Active in politics, he served three terms in the state assembly. He delivered the first Independence Day address in the presence of George Washington in 1789 and published Democracy: An Epic Poem under the pseudonym of Aquiline Nimble‐Chops.
Livingston's legal activities were extensive. He assumed the leadership of the “Manor” branch of the family in its lawsuits with the “Clermont” side and aided Alexander Hamilton in the Tory confiscation case of Rutgers v. Waddington (1784). By 1791 he emerged as a notable anti‐Federalist, helping carry New York for Jefferson in 1800. His reward was appointment as a puisne judge on the New York Supreme Court in 1802.
In four years, Livingston wrote 149 opinions, attaining high judicial humor in the famous foxhunt case of Peirson v. Post (1805). Livingston wrote a powerful decision in Palmer v. Mulligan (1805), favoring the business use of water at the expense of agrarian interests. Although his commercial decisions supported emerging capitalism, Livingston held to the traditional view that the truth of an utterance and its good faith were irrelevant to a charge of seditious libel. In a rare constitutional case, Hitchcock v. Aicken (1803), he used the full faith and credit clause to sustain an out‐of‐state judgment, a position he reaffirmed in Mills v. Duryee (1813). Livingston also served on the Council of Revision, where he voted against one bill because it altered charters of incorporation without the consent of the parties.
Livingston was considered for the United States Supreme Court in 1804 but had to wait until 1807. Those who expected him to be a pillar of opposition to Chief Justice John Marshall were disappointed; Livingston reverted increasingly to the Federalism of his youth. Falling under the genial sway of Marshall, he produced only thirty‐eight majority opinions, eight dissents, and six concurrences in sixteen years. Although Livingston had written a sweeping circuit court decision upholding New York's insolvency law (Adams v. Storey, 1817), he reluctantly followed the Court in striking down the retrospective aspects in Sturges v. Crowninshield (1819). Justice Joseph Story's private correspondence alone indicated his conflict with Marshall. More independent on circuit, in United States v. Hoxie (1808), he drew strictly the definition of treason to exclude the mere conveying of a raft of logs to the enemy.
Livingston was the Supreme Court's unofficial expert on commercial law until the arrival of Story and had great experience in prize law. His opinions were held in high regard by Story and subsequent legal critics.
Two acts of dubious judicial decorum involved Livingston (see Judicial Ethics). He informed John Quincy Adams of the court's intended decision in Fletcher v. Peck (1810), and in the Dartmouth College case (1819) he reportedly was influenced by an extrajudicial communication from former colleague Chancellor Kent and accepted honorary degrees from Princeton and Harvard while the case was under advisement.
Although lost under the shadow of Marshall, Livingston was nevertheless a vigorous and forceful personality on and off the bar. He survived one assassination attempt in 1785 and killed a man in a duel in 1798. A persistent advocate of free public schools, he also served as treasurer and trustee of Columbia University. His death in 1823 marked the beginning of the breakup of Marshall's undisputed sway over the court.
A World War II liberty ship was named for Livingston. Two distant cousins became president: George H. W. Bush in 1989 and George W. Bush in 2001.
Bibliography
- Gerald T. Dunne,
Brockholst Livingston , in The Justices of the United States Supreme Court, 1789–1969, edited by Leon Friedman and Fred L. Israel, vol.1 (1969), pp. 387–398. - Charles Warren, The Supreme Court in United States History, 2 vols. (1928)
— Michael B. Dougan
