The Louisiana Historical Quarterly
By Mr. Merrill Moores of the Indiana Bar.
Read before the Louisiana Historical Society on Tuesday, April 26,1921,
by Hon. W. O.Hart.
In a conversation with President Taft some ten years ago, he said to me that he knew of no American who had had so varied, interesting and useful a life as Edward Livingston, of whom at that time I had no knowledge. Having made a study of the life of Livings ton since, I am strongly inclined to agree with the former President.
Of one thing I feel quite confident, which is that there is no other family with whose story I am familiar which has had so many famous members on both sides of the Atlantic as Edward Livingston's family.
The authentic history of the Livingston family goes back to the death of James I, of Scotland, in 1437. When Sir Alexander Livingstone, of Calendar, was appointed by the estates of the Kingdom, one of two joint regents of Scotland during the minority of James II, then six years old, Livingstone being made Keeper of the King's person, and his associates Crichton Chancellor. The story of how the two regents murdered the young Earl Douglas at the royal table is familiar to all readers of Scottish history.
James Livingstone, the son of the regent and royal tutor, became the first Lord Livingstone. The fifth Lord Livingstone was made guardian of Mary, Queen of Scots in 1543, when the young queen was nine months old, and accompanied her to France in 1548 for her betrothal to the French Dauphin, and died there five years later. Among his descendants were the Earls of Linlithgow, Calendar and Newburgh and the Viscount of Kilsyth; but all of these family titles are now extinct, two by attainder and the other two by failure of direct heirs.
From the time of Mary Stuart, the greatest of the Livingstons are those of Livingston Manor, in New York, a royal grant, dated 1686, of 160,240 acres, to Robert Livingston, between whom and the guardian of the baby queen came in turn John Livingstone, a soldier killed at Pinkiefield in 1547, and three generations of Presbyterian preachers, Alexander, William and John, the last a famous pulpiteer, and in 1650, one of the two commissioners appointed on the part of the Kirk, acting in conjunction with commissioners appointed by the Scots' parliament, to negotiate with the exiled Charles II at Breda in Holland for his restoration to the Scottish throne. This Reverend John Livingstone, who was a famous writer of theology, was in 1654 in charge of a little church in Ancrum in Teviotdale near Melrose Abbey; and it was in the parsonage at Ancrum that Robert Livingston, the immigrant ancestor of a score of famous Americans was born. During his father's banishment by Charles II of nine years in Holland for non-conformity, Robert had learned the Dutch language and on coming of age he sailed for New Amsterdam, and took up his residence in Albany, where he married Alida Schuyler, widow of the Reverend Nicholas Van Rensselaer. He was given a small municipal office and in ten years was a wealthy man purchasing from the Indians the 160,000 acres for which in 1686 he received a royal patent as "the Lordship and Manor of Livingston."
The manor commenced about five miles south of the present city of Hudson and had a frontage of twelve miles on the Hudson river and about twenty on the Massachusetts and Connecticut boundary.
The first Lord of Livingston Manor held half a dozen colonial offices and was the warm friend and financial backer of Captain Kidd, for whose treasures the neighbors are still digging near the old manor house. He had five sons and four daughters by Alida Schuyler, and at his death the eldest son Philip took the greater part of Livingston Manor. One of his grandsons, Philip, signed the Declaration of Independence, and another, William, was a brigadier-general, a member of Congress in 1776 who could not sign the Declaration because absent on military duty, governor of New Jersey for fourteen years, a poet, lawyer and editor and the father of Brockholst Livingston, for many years a justice of the United States Supreme Court. The second son of the first Lord of Livingston Manor was Robert, who was given 13,000 acres, known as Clermont manor; and Robert, of Clermont, was father of Robert R. Livingston, a justice of the Supreme Court of the Colony of New York, and he was the father of Chancellor Robert R. Livingston, and of Edward Livingston.
Chancellor Livingston, the elder brother, was a member of the Continental Congress, and one of the committee of five who drafted the Declaration of Independence; but like his counsin William was prevented by other duty from signing. He was chancellor of New York from 1777 until 1801, during which period he was also a member of the Continental Congress and secretary of foreign affairs of the Confederation. He financed Robert Fulton and named the first steamboat for his manor of Clermont. The chancellor was minister to France from 1801 to 1805 and conducted the negotiations for the purchase of Louisiana.
Edward Livingston was 17 years younger than his brother the Chancellor, and was born at Clermont in 1764. His eldest sister was wife of General Richard Montgomery, who fell at Quebec in 1775. Five other sisters married almost equally famous men; and of two other brothers, least known to fame, one was a colonel in the revolution.
One need not be surprised by so elaborate an introduction to the Livingston family, when one recalls that in the royal colonies of New York and Virginia colonial government was largely a family affair, as it has been for centuries in England, where one cannot read understandingly the history of any period without access to a peerage.
The men of the Livingston family were almost without exception cultivated and well-educated, possessed of pronounced literary and artistic tastes and accomplished linguists. A few of them were graduates of Columbia; but most of them were educated either at Yale or Princeton.
Edward Livingston was graduated at Princeton in 1781 at the age of seventeen, in a class of six, the only other member of which to achieve distinction being William B. Giles, of Virginia, for a dozen years a member of the House, and three times chosen for the Senate, to become later governor of Virginia. The President of Princeton was then the Reverend John Witherspoon, who was a magnificent representative of the church militant, having led a body of men to the relief of the Young Pretender at Glasgow in 1745 and who was a member of the Continental Congress throughout the entire war of the Revolution, being a member of the secret committee on the conduct of the war and also a member of the Board of War, as well as an able and prolific theological writer and an eminent leader in the Presbyterian church.
Livingston read law with Chancellor Lansing in Albany, among his fellow students being the future Chancellor James Kent, and Alexander Hamilton and Aaron Burr.
No better born nor better educated man than Edward Livingston graces the early history of the American people.
It is not the purpose of this paper to tell the story of his life further than is necessary to some sort of understanding of the mystery of the motive which impelled Thomas Jefferson to follow Livingston, throughout Jefferson's life with unrelenting vindictiveness and unceasing persecution. There is no time in an hour's paper even to tell the whole story of Jefferson's bitter hatred, the occasion for which no one now knows.
The marquis de La Fayette at the age of 19 came to America in 1777 and almost at once became acquainted with the Livingston family and an attachment sprang up between him and the 13 year old Edward, which continued through life. Each spoke freely the language of the other, and several times the boy Edward was for days the guest of Lafayette at Washington's headquarters.
After the Revolution the Livingston family supported the new Constitution and co-operated with Hamilton and the federalist party in advocating its adoption. A tactless act of Alexander Hamilton alienated the entire family from the federalist party. The Livingstons supported General Schuyler, Hamilton's father-in-law, for Senator from New York but preferred another federalist to Rufus King, who had come from Massachusetts to New York less than a year before; but Hamilton procured the election of both Schuyler and King and the Livingstons left the party and were largely instrumental in accomplishing the defeat of Schuyler by Aaron Burr, two years later.
The lord of Clermont Manor had always maintained a town house near the corner of Wall and Pearl streets in New York, as well as manor house. Here Edward lived with his mother and opened a law office; and here he brought his wife Mary McEvers to live after his marriage in 1788. In 1794, when Edward was 30, he was candidate of the anti-federalists for Congress against the sitting member, John Watts. The district was the city of New York, which now has 14 members. Livingston carried his district by 205 votes, and was twice re-elected. Within three months of taking his seat, he distinguished himself in debate, taking the then new ground that Congress was not bound to appropriate money to carry out a treaty obligation. Notwithstanding Livingston's opposition the bill passed by a narrow margin, saving the credit of Washington and Hamilton. Madison, Gallatin and Giles were with Livingston; but Livingston's argument is much the strongest. The chief proponents were the many-sided Theodore Sedgwick and Fisher Ames.
In his second election Livingston defeated James Watson, afterwards United States Senator, by 550 votes, after Alexander Hamilton had made a personal canvass of the entire district against Livingston. At this time Francois la Rochefoucauld-Liancourt classes Livingston with Hamilton and Burr as "personages who deserve particular mention", and speaks of Livingston as "one of the most enlightened and most eloquent members of Congress."
In this Congress Livingston spoke earnestly and eloquently against the establishment of the Navy Department, taking the same grounds which President Harding has just given as reasons why it should be abolished. Following this Livingston achieved national fame by his eloquent opposition to the Alien and Sedition laws, the passage of which wrecked the federalist party.
In 1798 he defeated his cousin Philip Livingston by 175 votes. It was in this, his third term, that against the overwhelming majority of his party he took sides with a new member John Marshall as to the conduct of President John Adams in the Jonathan Robbins case, defending the action but denouncing Adams' interference with the judiciary. It was in this Congress too that he first took up what became his life work, the reform of penal administration.
Livingston was not a candidate for re-election in 1800 at the election in which Jefferson and Burr each received seventy-three votes, Adams 65, Pinckney 64 and Jay 1. Under the Constitution as it then stood, the election was thrown into the House, that body being required to vote by States, with one vote for each State and choose one of the two highest for President and the other for VicePresident. Jefferson was at the time Vice-President. Burr was a resident of New York and had been Senator until 1797.
For 35 ballotings the States voted; eight for Jefferson, six for Burr, with two States, Vermont and Maryland equally divided and not voting. Livingston was for Jefferson and held five other New York members with him for 36 ballotings casting New York's vote for the Virginian. On the last ballot the votes of Vermont and Maryland were cast for Jefferson and elected him. Without doubt the election of Jefferson instead of Burr was largely due to the efforts of Edward Livingston. It is known that they were at the time warm friends and in constant consultation.
Livingston ceased to be a member of Congress March 4, 1801, and returned to New York, where on March 13, less than a week after his return, his wife died of scarlet fever, leaving him with three small children, aged 10, 6 and 2.
Within a day or two after the funeral Jefferson appointed Livingston district attorney for New York, the district including the entire State.
August 24 of the same year Livingston was chosen mayor of New York, an office to accept which as Livingston's successor, DeWitt Clinton resigned his seat in the United States Senate.
In addition to the duties now performed by the mayor of that city, Livingston, as mayor, had to preside over a court of the broadest general jurisdiction, civil and criminal, trying all capital offenses. The earliest New York report is Colman's Cases. The second in time is the report of Livingston's decisions in the Mayor's Court. His duties as district attorney were equally arduous. The city had a population of a trifle more than 60,000, and the State a trifle less than 600,000.
He was thirty-seven years old, United States district attorney for the entire State cf New York, and charged, under the system then in vogue with the collection of vast sums collected at the port of New York as well as at Buffalo and elsewhere in the State, a duty now performed by treasury officials. He was mayor of the largest city in the country. He was judge of an important and busy court and he had the entire care of three small motherless children. It goes without saying that he had to discharge his duty of making government collections by deputy.
In the summer of 1803, an epidemic ol yellow fever came to New York. It came in July and lasted until the end of October. "The public alarm was great and universal. As a rule all who could possibly leave the city for a place of safety did so. As usual, however, there were many instance? of selfishness and cowardice on the one hand and on the other many examples of heroic philanthropy." One does not need a "minute picture of those dismal scenes of which the city was then the theater, so like other often painted scenes of pestilence enacted elsewhere—the hospitals, the streets, the shipping, the flights, the burials,—in order to comprehend the position of the Mayor, or to appreciate his conduct. He regarded himself bound, as by a sacred contract, to remain steadfastly at his post, and calmly face the public enemy without the slightest attention to what might be the consequences upon himself."
"He kept a list of the houses in which there were any sick, and visited them all, as well as the hospitals, every day, ascertaining and supplying the indispensable needs of the poorest and most forsaken of the sufferers." "He went about the city at night to see for himself if the watchmen were thorough in their duty."
At last and near the end of the epidemic, Livingston himself was taken down by the epidemic, but after a violent, although short, crisis, he made a rapid recovery.
During the two years he had been Mayor he had left the accounting for the large sums of public funds which came into his hands as district attorney in charge of his clerk and bookkeeper who was a Frenchman, who became an embezzler and a thief. His landed estates were extensive and valuable and his income large; but wholly exhausted by unusual expenditures during the epidemic. While the yellow fever was at its height, some motive impelled Jefferson to use his attorney-general, Levi Lincoln of Massachusetts, who probably invented the midnight judicial appointment myth, to demand of Livingston an accounting of the public moneys collected. The French bookkeeper absconded. Livingston knew nothing of his books. Immediately on his recovery from the yellow fever, having no money at all, Livingston, without waiting for an adjustment of his accounts, confessed judgment in favor of the United States for one hundred thousand dollars, and transferred his entire estate to a trustee for sale, the proceeds to be applied to the payment of the amount of the defalcation, afterwards fixed at $43,666.21. This done, he resigned both offices.
I have heard it stated that Jefferson procured Livingston to be indicted for embezzlement; but have no evidence of it and am inclined to doubt it, although, as long as Jefferson lived, he pursued Livingston with bitter hatred.
In April of 1803, Edward Livingston's brother, the Chancellor, had purchased for the United States from Napoleon the imperial domain of Louisiana. In June, LaFayette wrote to Edward Livingston a letter from which I quote this sentence: "His mission I consider as happily ended by the blessed arrangement for Ixmisiana. With all my heart, I rejoice with you on this grand negotiation, which, both as a citizen and as a brother, must be not less pleasing to you than it is to me." For many years LaFayette and Livingston had kept up a constant correspondence.
During the last week of December, 1803, Livingston sailed from New York for New Orleans, leaving his little children with his brother John, who had married a sister of their mother.
He took with him a hundred dollars in gold and a letter of credit for $1,000 all that he had left of his former substantial estate.
He arrived in New Orleans in February, 1804, to find the civil law of Spain in full force. Familiar with the civil law by study, speaking with ease French, Spanish and German, the sweetness of his temper, and his simple, kindly manners made the making of friends an easy task and almost from the very beginning he acquired a large and paying practice.
The act annexing Louisiana was in terms quite ambigous, adopting by reference the ordinance of 1787 for the government of the Northwest Territory, but also providing for the writ of habeas corpus, trial by jury and that the laws in force in the territory, not inconsistent with its provisions should continue in force until modified or repealed.
An attempt was made by the flood of Americans, which poured into Louisiana after the purchase, to secure from the courts a decision that the words "common law" in the Act of Congress meant the "Common Law of England." A tremendous array of counsel, English, Scotch, Jrish and Colonial contended for this construction, while Livingston and three French advocates, Lislet, Derbigny and Mazureau, argued for the civil law. Livingston had been less than a year in Louisiana; but his argument proved unanswerable, and the court held with Livingston's contention that the law in force in Louisiana being Roman, and Spanish and French, as were the people at the time of annexation, the words "common law" in the Act should be construed "the common law of Louisiana" and not of England. His colleague Etienne Mazureau wrote that in his argument Livingston had been "great, sublime, astonishing;" and said to him "Happy are the people whose interests are defended by a man like you." Livinston's victory stands until this day; for does not every man know that Louisiana still retains the Roman law!
In the second year of Livingston's residence in New Orleans, he recommended the simplification of the practice and prepared an act embodying a new system of procedure. It consisted of 22 sections, which contain the substance of the cumbersome Indiana code. It ■was immediately adopted and is the basis today of Louisiana practice. The story is told that a young lawyer recently arrived from a Common Law State called on Mr. Livingston and asked with solicitude how long it would require for him to learn the practice. Livingston has asked him to dine at four o'clock the next day; and answered that he thought he could initiate him into the mysteries of practice before they sat down to dinner.
General Wilkinson took command at New Orleans in November, 1806, having orders from the President as to securing evidence to convict Wilkinson's recent accomplice Aaron Burr of treason. Livingston called on General Wilkinson on the day of his arrival and on a return visit the General supped with his host, who knowing of the old friendship between Wilkinson and Burr casually stated that an order of Burr for money had been presented to him by a Doctor Bollman; and expressed his surprise that such a sum as demanded should be due to Bollman, a person of small means.
Wilkinson's first step was the military arrest of Dr. Bollman and two other persons. A young lawyer, James Alexander, applied for a writ of habeas corpus to release Bollman, Swartwout and Ogden. Alexander requested Livingston to present the case in court for him and Livingston obligingly consented. When the matter came on for hearing, the General came into court in full uniform, accompanied by a brilliant staff equipped like himself. The General made his statement, asked that Alexander also be placed under arrest and proceeded to denounce Livingston by name. "The court room resounded with his menace and invective against the counsel, who had presumed to invoke in behalf of the prisoners the protecting writ of the law. He added, in a burst of passion that he would deal with counsel for the prisoners, and whomsoever dared to support them, without regard to place or to the position they might hold in in the country."
Mr. Beveridge, in his life of John Marshall, thinks that the hatred of Jefferson grew out of this appearance in the habeas corpus case; but it seems to me that it must have existed long before and was doubtless accentuated by Livingston's resistence. The blustering General had sent his prisoners beyond the jurisdiction of the court; but Livingston's courageous defiance of his authority brought the General to a halt and with the exception of his outrageous arrest of General Adair, later Governor of Kentucky and United States Senator, no further military arrests followed.
There is no time to tell the story of Jefferson's oppression of Livingston in the batture matter. Briefly Livingston had purchased a portion of the river frontage from Jean Gravier, for whom as counsel he had successfully conducted litigation as to Gravier's title to it. Governor Claiborne did not approve of the decision of the court, and directed Jefferson's attention to it. The decision was unquestionably unpopular with the creoles, who had used the river bank for wharfage purposes. The land was valuable as it had grown by constant accretion and adjoined the business part of New Orleans.
President Jefferson, apparently for the reason that Livingston had succeeded in quieting his title to the land, decided without any examination of the title that it must belong to the United States; and that the court had erred. The United Statrs did not intervene and appeal. They did not sue in ejectment or to quiet title. Jefferson's methods were much simpler and more immediately effective. The United States Marshal was directed by the Secretary of State to remove immediately by the civil power any persons who had taken possession of the batture. Livingston enjoined the Marshal from dispossessing him; and the Marshal by order of the President disregarded the writ and put Livingston off and kept him off. Livingston then sued the Marshal in the federal court in Louisiana to recover damages and be reinstated in possession; and he sued Jefferson in the federal court of Virginia for $100,000 damages. This litigation continued throughout Livingston's life and after his death his heirs obtained a recompense for the land which hardly more than repaid the costs of the fiercest litigation in Louisiana history.
The President had given his personal attention to this litiga tion, and had briefed the facts and what he took to be the law for counsel. This brief Mr. Jefferson adorned with abuse, vituperation and ridicule of Livingston, the style of the brief suggesting the possibility that General Wilkinson and Jefferson's friends and collaborators, the Governor and Chief Justice Burke of South Carolina, who assisted Jefferson in denouncing the Society of the Cincinnati, had also assisted Jefferson in writing this brief of 91 pages which he had printed and circulated as a pamphlet throughout the country.
This litigation left Livingston again penniless; but his law practice continued to be large and lucrative.
Andrew Jackson had been made major general in May, 1814, at Mobile; he arrived in New Orleans, December 2. He made Edward Livingston a colonel and Livingston served as aide de camp, military secretary, interpreter, orator, spokesman and confidential adviser to his chief. His son Lewis was made captain of engineers in the motley army of backwoodsmen. Both of them were in every action and served with great gallantry.
In 1825 Livingston, in conjunction with Pierre Derbigny and Moreau Lislet, drew the civil code of Louisiana, a monumental work. Livingston's Penal Law of Louisiana took two years to prepare and was barely completed when it was destroyed by fire, not a vestige remaining. He went to work on the code the morning after the fire and in two years more had reproduced it; but it was never adopted by the General Assembly of the State. It constituted a very great advance in legislation. It was translated into French and German and studied all over the world.
Victor Hugo wrote to the author: "You will be remembered among the men of this age, who have deserved most and best of mankind." Jeremy Bentham proposed that a measure should be introduced in parliament to print the whole work for the use of the English nation.
The Westminster Review said: "In England the eyes of its most enlightened philosophers, of its best statesmen, and of its most devoted philanthropists will be fixed upon him, and in his own country his name will be held in lasting remembrance, venerated and loved. He is one of those extraordinary individuals whom nature has gifted with the power, and whom circumstances have afforded the opportunity, of shedding true glory and conferring lasting happiness on his country, and of identifying his own name with the freest and most noble and most perfect institutions."
Sir Henry Maine pronounced him "the fiist legal genius of modern times."
Howard made him an LL. D. The Emperor of Russia and King of Sweden wrote him autograph letters of congratulation. The King of the Netherlands decorated him. Brazil and Guatemala adopted his penal code verbatim. Marshall, Kent, Madison and Story wrote to Livingston expressions of admiration; and not to be forgotten, Jefferson climbed on the wagon and wrote Livingston to say that his work "would certainly arrange his name among the sages of antiquity."
In 1822 Livingston was again elected to Congress, to serve three more terms. In 1826 he repaid his debt by turning over to an administration to which he was opposed certain property he had succeeded in freeing from litigation, from which the government shortly realized $6,000 more than the entire debt of $44,000 with interest.
In 1828, Livingston was defeated for Congress in the fall election; but the legislature in January elected him Senator and he entered the Senate the day his old commander entered the White House. In 1831 Colonel Livingston became Secretary of State, resigning from the Senate.
As Secretary of State Livingston drafted the proclamation of Jackson to the nullifiers of South Carolina, in the concluding paragraph of which he says: "The Union must be preserved without blood, if this be possible; but it must be preserved at all hazards and at any price."
In May, 1833, Livingston resigned as Secretary of State to undertake at Jackson's request the conduct of the claim for indemnity for French spoliations, and was appointed Minister to France. In this diplomatic work Livingston succeeded in that the indemnity was paid. Mr. Livingston returned from France aboard the Naval frigate Constitution, arriving in New York in June, 1835, and went to his country home on the Hudson, Montgomery Place, which had been left him by his aunt, the widow of General Montgomery.
He and Daniel Webster argued for the city the case of New Orleans v. United States, 10 Pet. 691, in January, 1836. He returned from Washington to Montgomery Place, and after a brief illness, died there May 23, 1836 at the age of 72.
Those who desire to pursue the subject of this paper further are advised to read the "Life of Edward Livingston," by Charles Havens Hunt, and "Memoirs of Mrs. Edward Livingston," by Louise Livingston Hunt.