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LIFE OF EDWARD LIVINGSTON.
LIFE
OF
EDWARD LIVINGSTON
CHARLES HAVENS HUNT.
WITH AN INTRODUCTION
GEORGE BANCROFT.
NEW YORK:
D. APPLETON AND COMPANY,
443 AND 445 BROADWAY.
1864.
Entered according to Act of Congress, in the year 1863, by
CHARLES H. HUNT,
in the Clerk s Office of the District Court for the Southern District of
New York.
RIVERSIDE, CAMBRIDGE:
STEREOTYPED AND PRINTED BY H. O. HOUGHTON.
TO
A. DE P. H.
WHO HAS WATCHED THE COMPOSITION OF THE FOLLOWING
CHAPTERS WITH A STEADIER INTEREST THAN THEIR TOPICS
ALONE COULD HAVE INSPIRED, THE WRITER DEDICATES HIS
WORK.
PREFACE.
HAVING been intrusted by the Editors of the "New
American Cyclopaedia " with the task of preparing
the notices of Robert R. and Edward Livingston
which appeared in that work, I conceived an un
expected interest in the career of the younger of
these brothers, and resolved to write a more extended
sketch of his life, such as the public and common
sources of information would enable me to do. In
pursuance of that plan, a considerable part of the
following work was composed, including the chap
ters upon the Livingston genealogy, the first con
gressional career of Edward Livingston, his contro
versy with Jefferson, and his system of penal law,
which were finished in their present form. I was
proceeding to fill up other parts of the outline, when
an acquaintance which I formed with Mr. and Mrs.
Thomas P. Barton, the only survivors of Mr. Liv
ingston s immediate family, led to my acquisition
of the best materials for the remainder of the work.
Besides taking the greatest pains to satisfy all my
particular inquiries, they in the kindest manner, and
without reserve or material restriction, placed in my
hands the whole mass of papers left by Mr. Living
ston at his death, a collection, it needs hardly be said,
of great interest and value, as well for more general
x PREFACE.
researches as for that to which my attention was de
voted.
In the use which has been made of these materials
I have followed very strictly my own judgment and
method, which was to confine myself to the presen
tation of such matter only as would place in the
best and plainest light the genius and character of a
man, an account of whose life, both full and concise,
I thought our American biography not rich enough
to well afford to dispense with.
I have received valuable hints, pieces of informa
tion, or clews to information, from several other
friendly hands. Among these I may mention by
name the late Honorable Charles J. Ingersoll, the
late Honorable Henry Carleton, (both of whose com
munications, though given with true vivacity, were
spoken from the very door of the tomb,) Mrs. Joseph
Delafield, Mrs. Henry D. Gilpin, Miss Mary Garret-
son, the Honorable George M. Dallas, the Hon
orable Gulian C. Verplanck, the Honorable George
Bancroft, David Codwise, Esquire, Augustus R. Mac-
donough, Esquire, A. Judson Kneeland, Esquire, W.
Coventry H. Waddell, Esquire, Henry B. Dawson,
Esquire, George H. Moore, Esquire, and William
Henry Forman, Esquire.
The late Honorable Henry D. Gilpin, who was
Attorney-General in the cabinet of Mr. Van Buren,
and one of the most accomplished among American
public men, enjoyed a long political and personal
intimacy with the subject of this volume. He was
the author of the sketch of Mr. Livingston which
appeared, before the death of the latter, in the "Na
tional Portrait Gallery." He afterwards read a nec-
rological notice of Livingston before the American
PREFACE. x {
Philosophical Society, which has been published.
And he intended, and began to write a more ex
tended life of his friend, for which purpose he had
in his possession the same manuscript materials which
I have now employed. But he had not proceeded
far in this task when its fulfilment was precluded
by his own untimely end.
I am enabled to introduce my work by an estimate
of the character of its subject, made by one whose
studies all will recognize as qualifying him in an emi
nent degree to compare Livingston with the founders
of the Republic. It is a satisfaction to find that my
own impressions do not differ from those of the dis
tinguished author of the Introduction, who, as it may
be proper to say, is not responsible for any of the
views or expressions in the text, of which he did
not see any part until after it was printed.
C. H. H.
New Torky November 18, 1863.
INTRODUCTION.
THE domestic virtues, the sweetness of temper,
the charm of untroubled cheerfulness combined with
high ability and culture, endeared Edward Living
ston to his family and private friends ; for the coun
try his life derives its interest from his intimate rela
tion to the great epochs of its recent history.
Descended from families which at an early period
came over from Scotland and from Holland, he had
from childhood, in the conduct of his father, an ex
ample of a wise and deliberate support of liberty
against the aggressions of authority, at a time when
America held her liberties as colonies, and had to
defend them against the king and the parliament of
Great Britain.
As he was just passing out of the years of boyhood,
the great event that instilled into his mind and af
fections the principles which he was to follow for
life was the American Declaration of Independence;
and this he took to heart with a peculiar interest, as
his eldest brother, the guide of his early life, was one
of the five to whom the framing of that instrument
was intrusted.
The country was found to languish in the prose
cution of the war, from a want of executive unity,
x i v INTRODUCTION.
and for this a remedy was sought in the appointment
of individuals to manage the several departments;
as a consequence, the elder brother of Edward Living
ston became the first American Secretary for Foreign
Affairs, and while in that post took the prominent
part in recognising the most generous code of mari
time freedom as the rule of the United States. In
this manner the younger brother grew familiar at
once with the most liberal system of international
law, and the necessity of a closer and firmer cohesion
of the integral parts of his country.
The inefficiency of the confederate government
having been proved by experience in war and in
peace, the United States proceeded to the greatest
achievement in the civil history of man, the forma
tion of a more perfect Union, by the deliberate act
and choice of the people. Of all the old thirteen
States, New York should have been first in its zeal
for the advancement of that sublime design : what
evil spell of party spirit, what mistaken interpreta
tion of the traditions of the past, what selfish, unen
lightened narrowness, what unreasonable transfer of
the well-founded jealousy of the power of king and
parliament to the power of the people, could have
led the State which should have been the eye and
the guide of the nation, to doubt and seemingly re
sist the policy which was so fraught with blessings?
There again the elder brother of Edward Livingston
separated himself from his misleading political friends,
and in the hour of greatest need gave his influence
and his voice for the new triumphant Union. At
this moment both brothers were inspired by the same
anticipation of the glory of their country and the
advancement of the best interests of man.
INTRODUCTION. xv
Thus far Edward Livingston had been subordinate,
and his opinions and zeal were effaced by the supe
rior publicity and importance of the efforts of his
brother ; the time was come for his own public ser
vice. The Union was established, but even in the
period of the Father of his Country it encountered
one insurrection, and before John Adams had been
a twelvemonth in the presidential chair, the largest
State in the Union prepared by separate action, as its
statute-book shows and its historian records, " to fight
for her sovereignty." How to meet the danger was
the question that agitated the nation : one party saw
safety in aggressive acts of legislation, tending to re
straint on the free expression of opinion, and to a
dangerous exercise of discretionary power; the other
sought to anchor the Union in the affections of the
people. It was on this occasion that Edward Liv
ingston first became known to the country by pre
eminent activity; and it was with his marked and
most effective concurrence that the support of the
Union was incorporated into the creed and the heart
and the life of the democratic party. " We are all
federalists, we are all republicans," was the official
summing up of the result; the Union was set high
above political conflict as the dearest possession of
all; the executive powers were maintained and ex
ercised in their plenary significance; and the gov
ernment gained time to harden into firmness and en
durance. It was even said that the powers of the
General Government were enlarged.
Simple and frugal in his personal habits, he yet
was overtaken by the severest calamity in his fortunes.
Struck down by the yellow-fever, caught from his
visits of consolation and mercy to the sufferers among
xv i INTRODUCTION.
the poor during the raging of that disease in New-
York, he recovered from a desperate illness to find
that he had been defrauded by a clerk, and that he
was a debtor to the government beyond his means
of immediate payment. Without a word of com
plaint, crimination, or excuse, he at once devoted
his inheritance, his acquisitions, the fruits of his pro
fessional industry, to the discharge of his obligation
to the government, and, for near a score of years,
gave himself no rest, till he had paid it, principal
and interest, without defalcation.
The acquisition of Louisiana opened a new field
of activity to Edward Livingston, for he transferred
his home to New Orleans, and the gentleness of his
character, his decision, and his wisdom pointed him
out as the fit legislator to blend harmoniously the
conflicting elements of the territory. We had ran
somed it from servitude to European masters with a
price ; we gave a charm to that ransom by redeem
ing its French and Spanish inhabitants into civil
equality and the fullest enjoyment of our highest
political rights; we took no way to bind them to
the Union forever, but by welcoming them as broth
ers to all its unequalled advantages and powers and
hopes. It fell to the lot of Edward Livingston, as
a legislator, to adjust the old municipal laws, derived
from France and Spain, to the new condition of the
connection with America. How great was this ser
vice may be judged by a comparison of the process
in Louisiana with a similar process in the annexation
of Canada to the British empire.
The country became involved in war : here Liv
ingston, essentially a man of peace, was able to ren
der effective aid; his habit of doing justice to men
INTRODUCTION. xv ii
of every nation had made him the friend of all,
and the unity of action of all the races of Louisiana
in the defence of the common country may in some
measure be traced to the timely wisdom of his
counsels.
Once more the conflicts of party turned on the
question of the preservation of the Union. A spuri
ous aristocracy claimed a right for every State which
they could rule, to nullify the laws of the United
States to such an extent as would have made the
Constitution like a ship at sea, water-logged, and at the
mercy of every wave of political cupidity or passion.
The salvation of the country turned on the right in
terpretation of the principles of democracy. Jeffer
son, its early leader, was no more ; but Madison lived
long enough to expound its acts and resolutions of
former days ; and Jackson, as President of the United
States, having Livingston as his adviser, gave author
ity to that exposition. Who that looks back upon
those days does not rejoice that the chief magistrate
was Jackson, and that his adviser was Edward Liv
ingston, who to the clearest perceptions and the firm
est purpose added a calm, conciliating benignity and
the venerableness of age, enhanced by a world-wide
fame?
That fame was due to the fact, that Edward Liv
ingston, more than any other man, was the represent
ative of the system of penal and legal reform which
flows by necessity from the nature of our institutions.
The code which he prepared at the instance of the
State of Louisiana is in its simplicity, completeness,
and humanity at once an impersonation of the man,
and an exposition of the American constitutions. If
it has never yet been adopted as a whole, it has proved
xv iii INTRODUCTION.
an unfailing fountain of reforms, suggested by its
principles. In this work more than in any other
may be seen the character and life-long faith of the
author. The great doctrines which it develops
will, as time advances, be more and more nearly
reduced to practice, for they are but the expression
of true philanthropy, and, as even the heathen said,
" Man loves his fellow-man, whether he will or no."
GEORGE BANCROFT.
Ne*w fork, 14 November, 1863.
CONTENTS.
Page
CHAPTER I.
LIVINGSTON MANOR AND THE LIVINGSTONS. i
CHAPTER II.
BIRTH AND MINORITY OF EDWARD LIVINGSTON.
Birth of Edward Livingston The Period of his Minority His
Father s Family Judge Robert R. Livingston Margaret Beek-
man The second Robert Livingston Judge Livingston s Ac
tion before and during the Revolution His Character Charac
ter of Margaret Beekman 15
CHAPTER III.
EDUCATION AND EARLY ASSOCIATIONS.
Departure of General Montgomery for Canada School at Esopus
First Constitution of New York Robert R. Livingston Burn
ing of Esopus by the British Destruction of the Family Mansion
at Clermont Princeton College Dr. Witherspoon Study of
Law Cultivation of Philosophy and Poetry Lafayette The
Family at Clermont 29
CHAPTER IV.
EARLY PROFESSIONAL CAREER.
New York in 1785 The Bar Federal Hall The Mayor s Court
James Duane The Case of Rutgers versus Waddington
Richard Varick Egbert Benson John Sloss Hobart Brock-
holdst Livingston Burr and Hamilton Early Professional Career
of Edward Livingston His Marriage Election to Congress.. . . 46
xx CONTENTS.
Page
CHAPTER V.
Six YEARS IN CONGRESS.
A Political Canvass in 1794 Eminent Men in the House of Rep
resentatives Andrew Jackson Address to the President Trials
of Randall and Whitney Exertions in Behalf of American Sea
men Debates on Jay s Treaty Lafayette at Olmutz Estab
lishment of Naval Department Alien and Sedition Measures
Speech against the Alien Bill John Marshall Debate on the
Case of Jonathan Robbins Early Attention of Mr. Livingston to
the Condition of Penal Laws Election, in the House, of Jeffer
son to the Presidency 6 1
CHAPTER VI.
OFFICES AND MISFORTUNES.
Approaching Change in Mr. Livingston s Career Death of his
Wife Appointment as Attorney of the United States, and as
Mayor of New York Variety of Functions Germ of the Liv
ingston Code Manners and Tastes Conduct during the Preva
lence of Yellow-Fever in the City The incurring of a Debt to
the Government Circumstances of the Affair Conduct in that
Difficulty Resignation of Offices Honors thereupon received
The Purchase of Louisiana Letter from Lafayette Depart
ure for New Orleans 89
CHAPTER VII.
EMIGRATION TO NEW ORLEANS.
Voyage, and Arrival at New Orleans The City and its Inhabitants
in 1804. Mr. Livingston s Exertions and Success at the Bar
His Homesickness His Professional Character and Public Spirit
His Code of Procedure for Louisiana A Confusion of Tongues
in the Courts Eloquence of Livingston before a Masonic Lodge
His Method as an Advocate His Supremacy at the Bar
Note from Mazureau Mr. Livingston s Social Traits His Taste
for Mechanical Invention His Second Marriage Prospects of
Pecuniary Success Obstacles Calumnious Attack upon Mr.
Livingston by General Wilkinson 1 1 1
CHAPTER VIII.
THE BATTURE CONTROVERSY. 135
CONTENTS. XX J
Page
CHAPTER IX.
DISAPPOINTMENT AND AFFLICTION.
Temper of Mr. Livingston Condition of Affairs, caused by the De
votion of his Time to the Batture Enterprise Anecdotes A
Scrap of Translation Anxiety to end the Separation from his
Children Letters of Julia Her Death Letters to Lewis
The latter joins his Father 184
CHAPTER X.
THE BATTLE OF NEW ORLEANS.
Mr. Livingston s Services in the Campaign His Qualifications
His Previous Acquaintance with General Jackson Meeting of
Citizens in September, 1814 Appointment of a Committee of
Safety Address of the Committee to the People Successful
Defence of Fort Bowyer Proclamations by Jackson His Ap
pearance and Reception in the City His Intimacy with Livingston
Contrast and Concord between them Multifarious Services of
the latter during the Campaign Proclamation of Martial Law
Gallantry of the young Lewis Dangerous Service in the Night-
battle of December 23d Pleasantry under Difficulties Rejoicings
in the City after the Decisive Repulse of the Enemy Influence of
Livingston in Jackson s Military Councils The Lafittes The
Draughting of Reports, General Orders, Addresses, etc. Despatch
of Colonel Livingston to the British Fleet to negotiate an Exchange
of Prisoners His Detention and Return to the City with News of
Peace Arrest of Judge Hall under Maftial Law Subsequent
Arraignment of General Jackson for Contempt of Court Defence
of the latter prepared by Livingston Miniature of Jackson pre
sented by him to his Friend Project of a Life of the General
Mutual Attachment established between him and Livingston 195
CHAPTER XL
LEWIS LIVINGSTON.
Renewal of the Struggle for Pecuniary Independence Necessity of
again parting with Lewis Return of the latter to the North
Letters from Father to Son Labors of the former Progress of
the latter s Education His Successful Mission to Canada to pro
cure the Remains of General Montgomery Scene at Montgomery
Place on the passing by of the Escort, bearing the Hero s Ashes to
xx ii CONTENTS.
Page
New York Return of Lewis to New Orleans Crisis in the Bat-
ture Litigation An Adverse Decision Fortitude of Mr. Living
ston His Services in the Legislature of Louisiana Uneasiness
on Account of the State of Lewis s Health Voyage of the latter
to Europe His Letters His Rapid Decline and Death Depth
of his Father s Grief 211
CHAPTER XII.
THE LIVINGSTON CODE.
Mr. Livingston s Commission by the Legislature to prepare a Penal
Code His Qualifications and Zeal Report of his Plan Ap
probation of the latter by the Legislature Completion of the Code
Its Destruction by Fire, and Restoration State of Criminal
Laws in Louisiana in 1820 Original Features of the Livingston
Code Proposal to abolish the Punishment of Death Details of
the Proposed System Explanatory Reports to the Legislature
Neglect of the latter to act upon the Reported Code Effects of its
Publication 255
CHAPTER XIII.
THE REPUTATION OF THE CODE. 276
CHAPTER XIV.
Six YEARS IN THE HOUSE AGAIN.
Election of Mr. Livingston to Congress His Position in the House
Speech on Roads and Canals Letters from Jefferson and Du
Ponceau Intimacy between the latter and Livingston Letters to
Du Ponceau Completion of the Livingston Code Destruction
of the Draught Energy and Fortitude of the Author Industry
in reproducing the Code Letter from Webster Speech on the
Bill to amend the Judicial System, and on the Equality of Rights
among the States Vindication of Chancellor Livingston s Services
in the Purchase of Louisiana Close Attention of Mr. Livingston
to the Ordinary Business of Legislation Payment of his Debt to
the Government Manners and Social Habits General Jackson
in the Senate Growth of the Intimacy between him and Living
ston A Letter from the General Zealous Support of him for the
Presidency by Livingston Public Dinner and Speech at Harris-
burg Defeat of Livingston as Candidate for Reelection to a Fourth
Term in the House of Representatives His Election to the Senate 282
CONTENTS.
Page
CHAPTER XV.
SENATOR OF THE UNITED STATES.
The Satisfaction of Livingston s Ambition His Social and Domes
tic Habits Letter to his Daughter Jackson s Desire to employ
him in the Government Offer of the Mission to France Pecu
liar Attractions of the Post for Livingston Letters from Lafayette
Necessity of declining the Mission Appearance in the Senate
Speech on Foot s Resolution Correspondence with Bentham
Project for adapting the Livingston Code to the Use of the Federal
Government Senatorial Independence 325
CHAPTER XVI.
SECRETARY OF STATE.
Montgomery Place Mr. Livingston s Retirement for the Congres
sional Vacation of 1831 A Summons to Washington Dissolu
tion of the Cabinet The Secretaryship of State pressed upon Mr.
Livingston Letter to his Wife Acceptance of the Office His
Views of the Position Letters Foreign Transactions of the
Government Personal Characteristics of the Secretary of State
Anecdotes Character and Influence of Mrs. Livingston Pro
ceedings in the Senate on the Confirmation of the Cabinet Dig
nified Course of Mr. Livingston on that Occasion Independent
Conduct in Office Course on the President s Bank Policy Nul
lification Draught of the Proclamation of December 10, 1832
Notes from the President to Mr. Livingston Amendment of a
Single Paragraph The Growth of Mr. Livingston s Reputation
abroad Election to the Institute of France The French Mis
sion Letter from Lafayette Marriage of Mr. Livingston s
Daughter His Appointment as Minister to France De Toc-
queville 355
CHAPTER XVII.
MINISTER TO FRANCE.
Unsuccessful Attempts by Mr. Livingston to keep a Diary Extracts
Appointment to the French Mission Voyage to France Ob
jects of the Mission Active Exertions of Mr. Livingston The
Treaty of July 4, 1831 Failure to fulfil it by the French Gov
ernment Efforts of the King, and Opposition by the Chamber
of Deputies A Draft for Money drawn by the Secretary of the
XXIV CONTENTS.
Page
Treasury upon the French Minister of Finance Refusal to pay it
by the latter Failure of the Necessary Appropriation in the Cham
ber of Deputies Irritation evinced by President Jackson Mes
sage to Congress Effect of the Message in France Offer of
Passports to Mr. Livingston His Refusal to accept them unless
ordered to leave by the Government Elaborate Letter to the
Comte de Rigny Approval of his Course by the President
Conditional Appropriation by the Deputies of the Money due the
United States Mr. Livingston demands Passports His Parting
Address to the Due de Broglie His Continued Attention to the
Subject of Penal Legislation Increase of his Reputation as a Pub
licist Letters from Villemain and Victor Hugo His Efforts to
promulgate his System Letter to the Howard Society of New
Jersey Death of Lafayette Last Letter from the General Jour
ney through Switzerland and Germany De Sellon s Monument
Anecdote of Mittermaier Livingston s Social Traits and Temper
His Correspondence with Public Men Letter to his Sister
Farewell to Davezac The Homeward Voyage Popular Recep
tion at New York Public Dinners, etc. Unanimous Approbation
in America of Livingston s Conduct of the Mission Defiant Senti
ment of the Nation toward France Speech of John Quincy Adams
The President s Approval of Livingston s Course 386
CHAPTER XVIII.
CONCLUSION.
Retirement of Livingston to Montgomery Place Pursuits, Asso
ciations, and Views Visit at Washington Last "Appearance in
the Supreme Court Allusion to Jefferson Mr. Barton s Return
from France Culmination of the Difficulty between the two Gov
ernments Letter of Advice from Livingston to the President,
respecting the Message to Congress on that Subject Mediation in
the Affair by Great Britain Settlement of the Dispute Extract
from Livingston s Last Letter to his Wife Return to Montgomery
Place Illness and Death Honors paid to his Memory The
Author s View of Livingston s Character 423
LIFE OF EDWARD LIVINGSTO
CHAPTER L
LIVINGSTON MANOR AND THE LIVINGS
r I ^HE Livingstons of the State of New York have a
-- long and genuine pedigree, one that is so easily
verified and embraces so many important individual names,
besides showing a certain continuity of strong character
outlasting many generations, as perhaps to render perti
nent in this place a sketch of it more extended than com
monly befits the biographical notice of a prominent man
belonging to one of our republican families.
On the death of James I. of Scotland, in 1437,
Sir Alexander Livingstone, of Calendar, was appointed by
the estates of the kingdom one of two joint regents
during the minority of James II., being himself made
Keeper of the King s person, while his associate, Crich-
ton, received the office of Chancellor. Buchanan and
others relate minutely how the two regents quarrelled;
how the Queen -Dowager sided with Livingstone; how
the Chancellor got possession of the King, and kept
him in Edinboro Castle; how His Majesty s mother,
by a stratagem, delivered him back to Sir Alexander ;
how a difference of opinion between the latter and the
royal matron sprung up, which ended in his putting her
in prison ; how Crichton, by another strategem, got pos
session of the youth a second time ; and how all parties
i
2 LIFE OF EDWARD LIVINGSTON.
thereupon came to a reconciliation which restored the
monarch to his lawful guardian. The latter thenceforth
experienced several vicissitudes of public disgrace and
favor, and died soon after being appointed, in 144*9,
Justiciary of Scotland and Ambassador to England.
Among the exploits of this Sir Alexander, performed
in conjunction with his late enemy, Crichton, was one
of those treacherous and horrid murders, which the
gentlemen of his day sometimes indulged in with im
punity and royal approbation. The story is thus related
by Burke :
"Soon after their reunion, Livingstone and Crichton,
dissembling their intentions, asked the Earl of Douglas
to sup at the royal table, in the Castle of Edinburgh ;
the Earl was foolhardy enough to accept the invitation,
and proceeded to his sovereign s presence. At first he
was received with apparent cordiality ; but shortly after
he had taken his place at the board, the head of a black
bull, the certain omen, in those days, in Scotland, of im
mediate death, was placed upon the table. The Earl
sprang to his feet and attempted to escape ; but being
speedily seized and overpowered, he was hurried, along
with his younger brother, David, and Sir Malcolm
Fleming of Cumbernauld, one of his chief retainers,
into the court-yard of the Castle, where they were
stripped of their armor, and all three in succession be
headed on the same block. The death of the young
and princely Earl of Douglas excited universal detesta
tion, and his untimely fate was lamented in the ballads
of the time :
Edinboro Castle, Toune and Toure,
God grant thou sink of Sin,
And that even for the black dinoure
Earl Douglas gat therein. " *
* Vicissitudes of Families, Second Series, 1860.
LIVINGSTON MANOR AND THE LIVINGSTONS, g
The family of Sir Alexander then claimed consider
able antiquity, and a Hungarian origin. He was the
ancestor of a large race, which numbered many active
spirits during the turbulent centuries which followed.
His son James became the first Lord Livingstone. Al
exander, the fifth lord, through whose line the Living
stons of New York branch from the family tree, was
one of the two guardians of Mary Stuart, Queen of
Scots. His appointment to that office was in 1543; in
1548 he accompanied his royal ward to France, and he
died in that country in 1,553. His daughter, Mary Liv
ingstone, was one of the four Maries, playmates and
maids of honor to the queen. Some gossip respecting
the circumstances of her marriage with the son of Lord
Sempill makes one of the characteristic pages of John
Knox s lively " Historic of the Reformation of Religion
within the Realm of Scotland."
In 1600, Alexander, the seventh Lord Livingstone,
was created first Earl of Linlithgow, a title which de
scended to the fifth earl, who, in 1713? was made a peer
of the United Kingdom. Two years later, the latter
joined the Earl of Mar and the cause of the first Pre
tender. He lost his earldom in consequence, and it has
not been restored to his descendants.
The first Earl of Linlithgow had four brothers, the
third of whom was, in 165, made a baron of Nova Sco
tia. This title came to the eleventh and present baronet,
as he claims to be, Sir Alexander Livingstone, in 1853.
He is also, as he alleges, the heir and representative of
the attainted Earl of Linlithgow, whose lineal race is
extinct. The claim of Sir Alexander is, however, at
present, the subject of litigation. The tenth baronet dy
ing childless, his younger brother, Thurstanus, the father
of Sir Alexander, is the medium through whom the lat-
4 LIFE OF EDWARD LIVINGSTON.
ter claims the succession. This Thurstanus, though the
brother of an admiral, had gone to sea as a common
sailor, and, after leading a life in all respects on a level
with that vocation, died in great poverty in 1839, at the
age of seventy years.*
Three other titles, with estates, were conferred upon
enterprising younger sons of the House of Livingstone :
the Earldom of Calendar, in 1641, which in the course
of descent became merged in that of Linlithgow ; the
Earldom of Newburgh, in 1660, which is now extinct;
and the Viscountship of Kilsyth, in 1661, which was for
feited by the heir in the Rebellion of 1715.
But to return, for the clew which leads to our sub
ject, to the fifth Lord Livingstone, guardian of Mary
Stuart. His son, John Livingstone, being slain at the
Battle of Pinkiefield, in 154<7, was succeeded by a son,
Alexander, the first of three generations of ministers of
the Scottish church. The latter and his son William,
whatever may have been their labors or their virtues, ap
pear to have made no such noise in the world as leaves
any posthumous echo, and, but for the circumstance of
their having served as links between generations of
more conspicuous men, could never have received men
tion in any book written at a time so remote from their
own as the present. But the Reverend John Living
stone, son of William and grandson of Alexander, was
a celebrated preacher, was prominent in Scottish eccle
siastical history, and, in 1650, was one of the two com
missioners appointed on the part of the kirk to proceed,
in conjunction with those commissioned by the Parlia
ment, and to negotiate with Charles II. at Breda the
terms of that king s admission to the throne of Scot-
* These matters are stated with much detail by Sir Bernard Burke in
the volume just referred to.
LIVINGSTON MANOR AND THE LIVINGSTONS. 5
land. His birth was in 1603, and his death in 1672.
The last nine years of his life were passed at Rotter
dam, whither he had retired under a sentence of ban
ishment for non-conformity at home. Before his exile,
he had been settled successively at Killinshie, at Stran-
rawer, and at Ancram. He left an autobiography,*
especially interesting to his religious denomination, and
historically very curious as an account of these nego
tiations at Breda, from a spiritual and theological point
of view.
His son Robert the founder of the far-spreading
race of Livingstons in the New World was born at
o
Ancram, in Teviotdale, Roxburghshire, Scotland, in 1654*.
The clerical temper did not descend to him. His spirit
was of too adventurous a cast to permit his taking to
the calling or life of his father, grandfather, and great
grandfather. He was ambitious, shrewd, acquisitive,
sturdy, and bold. His whole career was a persistent
illustration of the motto upon the scroll of his ances
tors coat of arms, " Si je puis" And when, on the
occasion of being shipwrecked, as will be presently men
tioned, he adopted for his own shield, together with a
disabled ship for a crest, " Spero Meliora" he ex
pressed well the most salient trait of his character, as
afterwards developed in the sternest trials. His father s
exile had been the occasion of his learning the Dutch
* Several editions of this work in the year 1641, being sixty-five years
have been published, the latest be- old. His father was Mr. Alexander
ing that of The Wodrow Society, Livingstone, minister also at Monya-
Edinburgh, 1845. The reverend au- brock, who was in near relation to
thor begins with the following state- the house of Callender ; his father,
ment : " My father was Mr. Wil- who was killed at Pinkiefield, anno
liam Livingstone, first minister at Christi 1547, being ane son of the
Monyabrock, where he entered in Lord Livingston s, which house there-
the year 1600, and thereafter was after was dignified to be Earles of
transported about the year 1614 to Linlithgow."
be minister at Lanerk, where he died
6 LIFE OF EDWARD LIVINGSTON.
language. His first step in life, on attaining full age,
was to plunge into the wilderness of New York, along
the upper Hudson. Albany, then a village of Dutch
men, became his residence. He was very soon appointed
secretary of the board of commissioners who had charge
of " Albany, Schenectady, and the parts adjacent." This
office he held until Albany became a city, in 1686.
Three years before, he had married Alida, widow of
Rev. Nicholas Van Rensselaer, whose maiden name was
Schuyler. He and his brother-in-law, Pieter Schuyler,
were formally charged with the mission of proceeding
to New York and receiving the new city s charter from
Dongan, Governor of the colony.
During the three years preceding 1686, Robert Liv
ingston had, with the consent of the colonial govern
ors, effected several purchases from Indians of large
tracts of land, adjacent to each other, and together form
ing a domain commencing about five miles south of
the present city of Hudson, and having, on the eastern
shore of the Hudson River, a front of about twelve
miles, extending to the boundary between New York
and Massachusetts, upon which side it was about twenty
miles broad, and embracing upwards of one hundred
and sixty thousand acres. The first conveyance, dated
July 1, 1683, was of two thousand acres on Roelof
Jansen s Kill. The deed was executed by two Indians
and two squaws, whose names it is difficult to write
and impossible to pronounce. The consideration ex
pressed was the purchaser s promise, " to pay to the
said Owners these following Goods in the time of
five days to Wit three hundred guilders in Zewant,
Eight Blankets and two Childs Blankets, five and
twenty ells of Duffels and four garments of Strouds,
ten large shirts and ten small ditto, Ten pairs of large
LIVINGSTON MANOR AND THE LIVINGSTONS. 7
stockings and ten pairs of Small ; Six Guns, fifty
pounds of Powder, Fifty staves of Lead, four caps, Ten
Kettles, Ten Axes, ten adzes, Two pounds of Paint,
Twenty little Scissors, Twenty little looking-glasses, one
hundred fish hooks, Awls and Nails of each one hundred,
four Rolls of Tobacco, one hundred Pipes, ten Bottles,
Three kegs of Rum, one Barrel of Strong Beer and
Twenty knives, Four Stroud-Coats and Two duffel-Coats,
and four Tin kettles." And the other conveyances are
of the same character.*
These purchases were severally confirmed by Gov
ernor Dongan, and, on the 22d of July, 1686, he issued
to the proprietor a patent, erecting the territory into
the Lordship and Manor of Livingston, reserving to the
Crown a yearly rent of twenty-eight shillings sterling,
payable at Albany on the 25th of March. The patent
granted to the proprietor the privilege of fishing, hawk
ing, hunting, and fowling within the manor, and the
right to fish in the Hudson River along the boundary;
and the possession of all mines and minerals, excepting
only gold and silver mines. The grantee was author
ized to hold a court leet and court baron, and had the
advowson and right of patronage of the churches within
the manor. The patent gave the tenants the privilege
of assembling to choose assessors, to defray the public
charges of cities, counties, and towns within the manor,
according to the usages and laws in force in the prov
ince at large. The grant was confirmed by royal char
ter of George I., in 171 ^5 which conferred upon the
* Documentary History of New Catskil acknowledges to have re-
York, quarto edition, vol. iii. page ceived full satisfaction by a cloth gar-
367. At the foot of one of these ment and cotton Shift for her share
conveyances, the following memo- and claim to a certain Flatt of Land
randum occurs : " This day, the i8 th Situate in the Manor of Livingston ;
July 1687, a certain Cripple Indian Which Witness," etc. Ib. page
Woman named Siakanochqui of 369.
8 LIFE OF EDWARD LIVINGSTON.
tenants the further privilege of electing a representative
to the General Assembly of the colony, and two con
stables.
No doubt, the lord of the new manor believed he
was founding a house and perhaps a title that would
endure ; an inheritance which would long cohere and
expand. But he was not a prophet ; for in the third
generation after him, the fabric which he had devoted
his life to build quietly dissolved under the progress of
advancing ideas and changing institutions. If, however,
he could have foreseen the actual future of his family,
a vigorous race of great numbers and various
branches, including many distinguished and some illus
trious men, lights of trade, of politics, of jurisprudence,
of legislation, of diplomacy, of divinity, it would have
been enough to satisfy a reasonable adventurer s moder
ate expectations.
But, whatever his views or his visions may have
been, he led a stormy life, and battled hard in order to
accomplish the object of leaving his eldest son second
lord of the manor. He suffered many particular disas
ters, but his life was a current of general good fortune.
He had several downfalls which, when they happened,
appeared to be final ; but from every one of them he
recovered himself as with a bound. He made two voy
ages to Europe : in the first, he was shipwrecked off
the coast of Portugal ; in the second, he was taken by
a French privateer, and, as he alleged, " most barbarous
ly used ; " yet both these misfortunes he turned to prof
itable account. He was more than once deprived of
his offices by the ascendency of his enemies in the
colonial government, but he always contrived to have
them restored with additions. He was once denounced,
with some show of evidence, as a defaulter ; but he
LIVINGSTON MANOR AND THE LIVINGSTONS. 9
cleared his character, and overcame his defamers hand
somely. He was hunted by Governor Leisler, to whose
party he was warmly opposed, for treasonable words
against the King", which he was falsely and treacherously
accused of having uttered; but before he could be ar
rested, Leisler was himself executed for usurpation and
treason. Years later, the Leislerian faction, having
again got a preponderance in the colonial councils, de
clared his estates confiscated, and himself suspended from
his right to sit at the council board ; but he procured
the royal reversal of all this within a few months.
From the income of his half dozen offices, from his
agency of Indian affairs, from the profits of various
contracts with the Government, and from the rents of
his lands, the grantee of the manor gradually grew rich.
In 169^, he built a manor-house on the bank of the
Hudson, just above the mouth of the stream now called
Livingston Creek ; but he did not begin actually to re
side there till 1711. In the latter year he was elected
member of the General Assembly of New York for the
city and county of Albany. In that body he continued
till 17^6, when he withdrew from public life. For the
last ten years of this time, he represented his manor
under the latest and royal grant. He died in 17^8, at
the age of seventy-four.
The most notable blunder in Robert Livingston s ca
reer seems to have been the patronizing of William Kidd,
by procuring for him from the Government a commis
sion to sail against the pirates whose depredations on the
Atlantic were then of alarming frequency and dreadful
description. Captain Kidd, as every one knows, whatever
may have been his first intentions, if story and song
treat him fairly, lapsed into a good many immoralities
on his own account.
10 LIFE OF EDWARD LIVINGSTON.
" My name was Robert Kid,
When I sailed, when I sailed."
To how many different spots has tradition pointed as
hiding-places of his evil and enormous gains ! One of
the places so designated was upon the bank of the river
in front of the ancient manor-house. The present oc
cupant of that site, only a very few years since, dis
covered a band of superstitious neighbors on the spot
referred to, digging at midnight, with appropriate in
cantations, for the concealed treasure.
Robert and Alida Livingston had five sons and four
daughters. Two of the sons and two of the daugh
ters died unmarried. The other three sons were Phil
ip, Robert, and Gilbert. These were born in 1686,
1688, and 16QO. In favor of Philip, the eldest, the
father had resigned all his offices, excepting his seat in
the General Assembly, six years before his death. To
him he now left the bulk of his property, including
the whole of the manor, except about thirteen thou
sand acres from the southern part, afterwards known as
the Manor of Clermont, or lower manor, which he
conveyed to Robert in special consideration of an im
portant service which the latter had rendered, in the
detection of a plot formed by negroes for a massacre
of the white inhabitants of the neighborhood. To the
third son, Gilbert, he gave an estate at Saratoga.
Philip Livingston, second proprietor of the manor,
became the patriarch of a large family of his own.
His sons of whom most is known, were Robert,
Philip, and William, born respectively in 1710? 1716?
and 17-3. Robert became the third and last lord
of the manor. By his will he divided it, like a
democrat, fairly among his children, in spite of his
eldest son s loud remonstrance, and fervent entreaty
LIVINGSTON MANOR AND THE LIVINGSTONS. \\
that, for the sake of propriety, he might take the
whole.
The last proprietor of the manor died in 1790.
His great-grandchildren are numerous men and wom
en of the present generation. His younger brother,
Philip, signed the Declaration of Independence. The
latter was a merchant of the city of New York, of
such talents and character as secured for him great
consideration amongst the illustrious men in the Con
gress of 1776- He died two years after the Decla
ration, and five years before the War of Independence
was ended. The next younger brother, William, was
a very eminent man, a lawyer, poet, editor, and
statesman. He was Governor of New Jersey from
1776 until his death in 1790. One of the sons of
the latter was Brockholdst Livingston, eminent first at
the bar, then on the bench of the Supreme Court of
the State of New York, and finally as one of the
judges of the Supreme Court of the United States.
The second son of the first lord of the manor, Rob
ert, to whom the lower manor was given, was a man
of much learning, character, and influence, and his
views of American affairs and destiny were in advance
of those of most, if not all, of his countrymen. He
died in 177^? an ardent and clear-sighted patriot. He
was the father of Robert R. Livingston, a judge of
the Supreme Court of the colony of New York,
whose death, also, was in 177^- Judge Livingston
had, among other children, two sons whose several ca
reers threw lustre upon their family name, their pro
fession, and their country. These were Robert R. Liv
ingston, the first Chancellor of the State of New York,
and Edward Livingston, the immediate subject of this
volume.
12 LIFE OF EDWARD LIVINGSTON.
There are many descendants of Gilbert, the third son
of the grantee of the manor. The celebrated divine,
John H. Livingston, of New Jersey, who is regarded
as one of the fathers of the Reformed Dutch church
in America, and who died in 1825, was one of his
grandchildren.
When the first Robert Livingston returned in 1696
from one of his visits to his native country, he was
accompanied by his nephew, another Robert Livingston,
who came to reside also at Albany. The next year,
the latter married Margaretta, daughter of Pieter
Schuyler, and niece of Alida. The descendants of this
couple were, and still are, numerous. Several of them
have been prominent citizens of New York and other
States, especially in the way of commercial enterprise.
The elder Livingston family, from the time of its
founder, always wielded an important influence in the
affairs of the colony of New York, and was for many
years one of the powers in the State. During the
canvass which ended in the first election of Mr. Mad
ison to the Presidency, the active adherence of the
Livingstons as a family was deemed by that states
man and his political friends essential in order to carry
the State of New York for the democratic candidate.
What a change has the intervening half-century wrought,
not merely in the affairs of this house, but in those of
all like establishments in this country ! The Living
stons are now a multiplied host of for the most part
energetic and successful individuals, and their aggregate
wealth and influence exceeds the probable dreams of
their ambitious ancestor. Yet the strength which comes
of combination is gone from them. Our democracy
divides every clan, minces every estate, individualizes
LIVINGSTON MANOR AND THE LIVINGSTONS. 13
everybody, disintegrates everything. Each man is the
head of his own family ; no man can be the head of
the family of his ancestors. With us, the question
whether or not the eldest son shall be wealthy, power
ful, a patron, depends upon the eldest son s personal
qualities ; and the question whether or not the younger
son shall be a clergyman, usually turns upon his individ
ual inclination. The law does not arrange these matters
for them before they are born ; and if a Plantagenet
would appropriate any of the offices or honors of the
republic, he must first vie with and overcome a rival
bearing perhaps the newest of names. But in all this
our institutions only tally with the general spirit of this
age. The most hoary governments of the Old World
are drifting visibly towards democracy. Even among
crowned heads, at the present day, an upstart is apt to
be influential, if not respectable.
In the United States, we seem to be outheroding
this tendency of the times. Our political leaders, rep
resentatives, and even judges, are now too often indi
viduals whom many an obscure, well-bred person would
not meet in the same drawing-room for all the world.
We are certainly making some progress in bridging
the gulf which once generally separated low manners
from high positions. Such progress is one of the
worst of our present evils ; it threatens us with the
most palpable of our future dangers. How far the
effrontery of ill-bred ignorance and incapacity will carry
itself towards monopolizing places of dignity, power,
and trust, is truly a question of moment. It is fright
ful to contemplate the possibility that the entire gov
ernment in all its branches of so great and prosper
ous a country may, some day, be given permanently
over to unlettered and unmannered statesmen. The
14< LIFE OF EDWARD LIVINGSTON.
whole world always did and always will respect a man
who becomes conspicuous by force of high capacity
and virtue, in spite of humble birth and imperfect ed
ucation ; but surely it would be better if public opin
ion should restrain politicians from aspiring to the
Presidency without a respectable knowledge of gram
mar and the proprieties of life.
CHAPTER II.
BIRTH AND MINORITY OF EDWARD LIVINGSTON.
Birth of Edward Livingston The Period of his Minority His
Father s Family Judge Robert R. Livingston Margaret Beekman
The second Robert Livingston Judge Livingston s Action before and
during the Revolution His Character Character of Margaret Beek
man.
EDWARD LIVINGSTON was born at Clermont,
Columbia County, New York, on the 26th of
May, 1764. His minority, therefore, embraced more
than the whole course of the American Revolution. He
witnessed in boyhood the cause, the struggle, and the
result. He was born to citizenship in a perfectly loyal
colony of the British crown ; before he was a man,
that colony had become an independent State, irretriev
ably committed to republican institutions. The inci
dents of this swift and permanent change in the af
fairs of his country were before his eyes during every
hour of his youth, and all his family were devoted to
the labors, sacrifices, and dangers belonging to such a
transition.
It was an extraordinary family. Besides one child
that died in its infancy, there were six daughters and
four sons, all of whom were destined to reach a green
old age, ranging from sixty-six to ninety-eight years.
Edward was the youngest of all, the Benjamin
of the household. The other nine were, first, Janet,
born in 17^8, and married to the celebrated Rich
ard Montgomery, who fell at Quebec in 177^ I second,
16 LIFE OF EDWARD LIVINGSTON.
Robert R., the first Chancellor of the State of New
York, born in IJ4<6 ; third, Margaret, Mrs. Thomas
Tillotson of Rhinebeck, born in 17^8, whose husband
was one of the early Secretaries of State of New
York ; fourth, Henry B., a colonel in the Revolutionary
army, born in 17^0 ; fifth, Catharine, born in 175~ 5 and
married to the Reverend Freeborn Garretson of Mary
land, one of the pioneers of the Methodist church in
this country, whose memory, for sanctity and zeal, is
held in high veneration by that denomination of Chris
tians ; sixth, John R., born in 17-55 ; seventh, Ger
trude, born in 17-57? wife of the general, politician,
governor, and judge, Morgan Lewis ; eighth, Joanna,
born in 17^9, and married to Peter R. Livingston, an
eminent politician of the State of New York ; and last,
Alida, born in 1761 , and married to another Revolu
tionary officer, General John Armstrong, who, after
the war, held important civil positions, including those
of Secretary of State for Pennsylvania, Minister of the
United States to France during the latter part of Jef
ferson s administration, and Secretary of War under
Madison.
The father of these ten children was Robert R.
Livingston, one of the judges of the Supreme Court
in the colony of New York ; their mother was Mar
garet, daughter of Colonel Henry Beekman, and grand
daughter, on her mother s side, of Robert, nephew of
the first proprietor of the Livingston Manor, and Mar-
garetta Schuyler. The marriage of this couple, in
17i2, had been one of mutual love. Both of them
were only children of their respective parents, both
were to inherit large landed estates, and both had been
bred to the highest refinement and best culture possi
ble on this side of the Atlantic, in their time. There
HIS MINORITY. jy
was such adaptation in their characters and tastes that
the ardor and even demonstrativeness of their affection
for each other grew with their married life. The fol
lowing is one of his letters to her written in July,
17-55, thirteen years after their marriage, and when
she had borne him seven children :
" My last letter was written in a melancholy mood.
To you I am not used to disguise my thoughts. In
deed, I have for a long time been generally sad, ex
cept when your presence and idea enliven my spirits.
Think, then, with how much pleasure I received your
favours of the 30th of June and 3d instant. This I
did not do till last Sunday, and I have been happy
ever since.
" You are the cordial drop with which Heaven has
graciously thought fit to sweeten my cup. This makes
me taste of happiness in the midst of disappointments.
My imagination paints you with all your loveliness,
with all the charms my soul has for so many years
doated on, with all the sweet endearments past and
those which I flatter myself I shall still experience. I
may truly say, I have not a pleasant thought (abstracted
from those of an hereafter) with which your idea is not
connected; and even those of future happiness give me
a prospect of a closer union with you.
" I have not agreed with the Benthuysens yet ; and,
what is unaccountable, they say that my offers are not
fair. I fear that I must go to law with them at last,
but I shall try once more to get their final answer.
" I expect to-morrow the pleasure of the last letter
from you while I am absent. Let the next after your
receipt of this be to my father, for I hope to be on
my voyage to you next Saturday. To-morrow, I in-
18 LIFE OF EDWARD LIVINGSTON.
tend to go and see your father, to consult with him.
Your letters give me some hope of Bedloe s, which
would he a very agreeahle thing indeed. We must
depend on Providence and hope for the best.
" May the God of heaven preserve you, and grant
us a happy meeting, for without you I am nothing.
" Yours most affectionately,
" ROBERT R. LIVINGSTON.
" Remember me to all the little ones Providence
has committed to our charge, and kiss them for me.
Wednesday the 9th. Began to write on Tuesday, in
tending to send by a sloop, but it goes now by the
mail."
The refined reader of the above letter will not have
overlooked the natural touch of filial tenderness which
gleams from one of its sentences. The object of the
sentiment there so delicately but clearly indicated was a
notable man. The father of Judge Livingston was
Robert, second son of the first proprietor of the Manor
of Livingston, and the same who had earned and re
ceived the Manor of Clermont, as was stated in the first
chapter. We have a general likeness of him as he
appeared at the age of eighty-five, sketched by the pen
of his grandson Edward.* " Never," says this descrip
tion, " was man better entitled by his manners, his mor
als, and his education, to the appellation of gentleman.
His figure was tall, somewhat bent, but not emaciated,
by age, which had marked but not disfigured a face once
* Edward Livingston, in mature but one chapter. In that the descrip-
life, conceived a plan of writing a tion quoted in the text occurs. The
novel in which the characters should fragment is headed with the couplet :
be drawn faithfully from his own
memories of the actual group of " Scenes in sad remembrance set ;
which his grandfather was the central Scenes never, never to return."
figure. He appears to have written
HIS MINORITY. 1Q
remarkable for its regular beauty of feature, and still
beaming with the benevolence and intelligence that had
always illuminated it. He marked the epoch at which
he retired from the world by preserving its costume :
the flowing, well-powdered wig, the bright brown coat,
with large cuffs and square skirts, the cut-velvet waist
coat, with ample flaps, and the breeches scarcely cover
ing the knee, the silk stockings rolled over them, with
embroidered clocks, and the shining, square-toed shoes,
fastened near the ankle with small, embossed gold buc
kles. These were retained in his service, not to affect a
singularity, but because he thought it ridiculous, at his
time of life, to follow the quick succession of fashion."
He had, in his youth, been sent out to Scotland to be
educated, and had remained there till the age of twenty-
five. His attainments are said to have been extraordi
nary for his time. What remains of the correspond
ence between himself and his son indicates, on the part
of both, a familiar though unpretending acquaintance
with ancient classical literature. He was a life-long
student, and it is related of him that at an advanced
age he made the acquisition of a new language.* His
* He always kept a book in New York, exhibits the old gentle-
which he copied, with his own hand, man in the light of traits the most
apparently all his letters, even those whole-souled and amiable. In the
addressed to the members of his fam- same letter, which is a long one, the
ily and to his grandchildren. The octogenarian discusses several matters
latest two of these books, bound in of private business connected with
parchment, and containing copies of the surveying of lands and the collec-
the letters he wrote during his old tion of rents, alludes to political af-
age, are now lying beside me. These fairs in Europe and America, makes
letters are principally in English, a long quotation in the original from
some in German, a few to his grand- Erasmus, adds some religious renec-
daughters in French, and one or two, tions of his own, and reminds his
addressed to his grandson Robert grandson to bring with him, upon his
while at college, in Latin. The fol- next visit, a plentiful supply of gun-
lowing beginning of a letter, which I powder and fish-hooks,
transcribe from one of these antique
manuscript folios, written to the " Claremont, the 2 9 th March 1769
young Robert after the latter had " D R GRANDSON ROB T
commenced the practice of law at * I rec d y rs of the 6 th March ;
20 LIFE OF EDWARD LIVINGSTON.
nature was deeply imbued with religion, a character
istic in which he enjoyed the complete sympathy of his
only son. Several years before his death he made over
his entire property to the latter, in whose large family
he passed the remnant of his life in patriarchal dignity
and happiness. But his greatest distinction was his early
looking and longing for the independence of his coun
try, a subject on which his views and sentiments appear
to have outrun those of all his contemporaries, even of
the leading spirits in the approaching Revolution. They
relate of him, that, one day in the latter part of the
year 177^, his son ? his grandson Robert, the destined
Chancellor, and Richard Montgomery were convers
ing with him in his room at Clermont, when he ex
claimed, " It is intolerable that a continent like America
should be governed by a little island, three thousand
miles away. America must and will be independent.
My son, you will not live to see it ; Montgomery, you
may; Robert," addressing his grandson, "you will." The
prediction proved oracular ; for Judge Livingston and
General Montgomery were both to die on the eve of
American Independence, while to the young Robert it
was allotted, at the age of twenty-nine, to serve with
Jefferson, Franklin, Sherman, and Adams, as the com
mittee selected by Congress to prepare the immortal
Declaration. The old man s patriotic ardor had kept
pace with his foresight, and both had unquestionably
moulded in a great degree the sentiments and views of
but your good father opened it by bills were taxt, and then not ta be
mistake : consequently he knew you too hasty, w ch would look necessi-
had apply d to me, in pursuance of tous and griping, wherein he acqui-
my orders, for a little money in case esc d. I should immediately have
you should be straitened, w ch I take enclosed you a io lb bill, but he told
in good part. Yr daddy was a little me you would receive about .50 or
out of humour, alledging you was a 60 of his money, whereout you
little too lavish ; but 1 told him you could deduct that amount ; so I gave
could not receive cash for law, till himtheio."
HIS MINORITY. 21
the large circle of which he was the centre. He
died in 177^ a ^ r hearing of the events at Lexing
ton ; and among his last words addressed to his
daughter-in-law were, "Peggy, what news from
Boston 1 "
Judge Livingston, the father of Edward, was a man
worthy to transmit to his children the strong traits of
his ancestors. Religious feeling was the ruling quality
of his character. With this were hlended a mild tem
per, an affectionate disposition, inflexible principles, prac
tical energy, and worldly wisdom. I have before me a
considerable number of his family letters, besides that
which has been already transcribed; and they not only
all together show that he possessed this combination of
qualities, but almost every separate letter exhibits them
all. His judicial duties, political labors, and private af
fairs gave him plenty of employment. But in the
midst of the most multifarious engagements he wrote
constantly to his father upon all subjects, and especially
to communicate any news respecting the colonial policy
of the mother-country, a theme which greatly occupied
the thoughts of both for many years before the Revo
lution broke out. He was chairman of the committee
which was appointed by the General Assembly of
New York with authority to correspond with other As
semblies and their committees in relation to the several
grievances and apprehensions of the American colonies.*
As such, he with his colleagues was admitted, in the
absence of delegates regularly appointed by New York,
to a seat in the Stamp Act Congress of 1765, afi d took
* This appointment of a com- of the kind taken in America, though
mittee of correspondence by the As- a dispute for the honor of that prior-
sembly of New York took place on ity existed for a time between those
the 1 8th of October, 1764, and was, who claimed it respectively on behalf
by more than six years, the first step of Massachusetts and of Virginia.
OF EDWARD LIVINGSTON.
an active part in its deliberations. And he was the
author of the address to the King adopted hy that body,
praying for " the invaluable rights of taxing ourselves
and trials by our peers." Then, as at other times, he
would write to his father, giving details of what he was
doing and thinking, dwelling upon the madness of Eng
land, criticising the slowness of the mode of transacting
business in Congress, chronicling whatever he observed
O ~ O
of variation in the popular feeling, and pleading the
multiplicity of engagements as his excuse for not writ
ing more. One of these letters, a long one, dated the
19th of October, 1765, closes as follows : Ci See the
three great points we have to contend for, and of what
importance they are : trials by juries, a right to tax our
selves, the reducing admiralty courts within their prop
er limits. If you, Sir, consider my situation, you will
excuse my not writing to you before. Yesterday I had
the whole Congress to dine with me. In one place or
another we dine together every day ; so that, besides
business, this engrosses much time. I am now obliged
to drive my pen over this as fast as I can." Under
date of September, 17^7? he writes, " I have nothing
very agreeable. Madness seems to prevail on the other
side ; melancholy and dejection on this This
country appears to have seen its best days ; but God
may still avert the impending mischief and restore all
things. Our Governor seems rather too much taken up
with trifles. The grand object with him is the build
ing of a playhouse, though nothing he could think of
will give greater offence to the people. But he will
have it guarded by the army."
Judge Livingston s moderation kept him rather be
hind both his aged father and his youthful son in their
views of Independence. In the Stamp Act Congress
HIS MINORITY. #3
he had favored the measure of an explicit acknowl
edgment of the right of Great Britain to regulate the
trade of the colonies, and had deprecated in one of his
letters the heat of those members who had opposed that
measure. On the 5th of May, 1775> he wrote to
Rohert as follows :
" DEAR SON : You, I suppose, are now on your way
to Philadelphia, and will soon make one of that impor
tant body which will engage the attention of all America
and a great part of Europe. May Heaven direct your
counsels to the good of the whole empire. Keep yourself
cool on this important occasion. From heat and passion,
prudent counsels can seldom proceed. It is yours to plan
and deliberate, and whatever the Congress directs, I hope
will be executed with firmness, unanimity, and spirit.
Every good man wishes that America may remain free.
In this, I join heartily ; at the same time, I do not desire
that we should be wholly independent of the mother-
country. How to reconcile these jarring principles, I
profess, I am altogether at a loss. The benefit we re
ceive of protection seems to require that we should con
tribute to the support of the navy, if not to the armies of
Britain. I would have you consider whether it would not
be proper to lay hold of Lord North s overture, to open
a negotiation and procure a suspension of hostilities. In
the mean time, the check General Gage has received, and
our non-importation, will perhaps have a good effect in
our favor on the other side of the water. This seems
to be the thought of our council here, as Mr. Jay and
Mr. Livingston will inform you. I should think, if you
offered Britain all the duties usually paid here by our
merchants, even those paid since the disturbances began,
those on tea excepted, which seem to be too odious,
24 LIFE OF EDWARD LIVINGSTON.
and all other duties they may think convenient to levy
for the regulation of trade, shall be lodged in the treasury
of each colony, to be disposed of by their respective as
semblies and legislatures, on an engagement on their
side that no other taxes shall be imposed on them but
by their own representatives, we ought to be contented.
Some specious offer should be made, to increase our
friends in England. This, or some other of that kind,
if Lord North meant anything by his motion, but to
deceive the people of England, ought to put a stop to
his proceedings for the present; otherwise the odium he
lies under must increase. The Boston Charter ought
by all means to be restored, and were the tea paid for,
as a douceur, by the whole continent, it would be no
matter. But this you will not insist on except you are
well supported. These are my present thoughts ; how
ever, judge for yourself, and unite by all means, for on
this all depends. As to what relates to war, after agree
ing on quotas, the manner of levying men and money
will, I suppose, be left to each colony. May God direct
you in all things. A dependence on him will inspire
both wisdom and courage ; and if his Providence in
terfere in anything, as I firmly believe it does in all
things, it certainly does in the rise and fall of nations.
" Your most affectionate father,
" R. R. LIVINGSTON.
" Inquire whether I can have a quantity of saltpetre.
I hear there is a large quantity imported at Philadel
phia."
The saltpetre in this postscript sought after was for
use in a powder-mill, which the writer was then erect
ing, and in which his son, John R., manufactured gun
powder during the Revolutionary War. The following
HIS MINORITY. g
letter to Robert, dated June 19, 177^? shows the prog
ress of Judge Livingston s views, and of his powder-
mill : -
" I conclude, from the King s answer to the Lord
Mayor, that if American liberty is maintained, it must
be by the greatest exertion of our force, under the
favor and direction of Providence. In this situation I
am under no apprehension but from the enemies we
have amongst ourselves. A hearty and united opposi
tion would render us to all appearance invincible. In
this part of the country we have many opposers, but
still the Whig interest appears to be growing. Com
mittees either have been or will be chosen in every part
of Dutchess ; but I believe there will be many who will
not sign the association, and great opposition is made to
the choosing of a committee in Rhinebeck. Cousin
Robert found the manor people under arms last Tuesday.
About two thirds signed the association ; the rest are to
consider it a fortnight, but many oppose warmly. The
Whigs are predominant, at least in Tryon, and if I can
depend upon the information I have received, have sent
deputies to the P. Congress. I hear the adjourning of
your Congress to Hartford or Albany has been men
tioned. As the object of most consequence is union, the
greater attention should be paid to the three counties,
Albany, Charlotte, and Tryon. It seems to be absolutely
necessary that they should be in a state of defence. In
this purpose, nothing could be more effectual than the
Congress sitting in Albany. This would oblige all the
Tories, as they are called, to join, to say nothing of its
being one hundred and fifty miles nearer the seat of
action. My powder-mill will be set agoing, I hope, the
beginning of next week.
4
26 LIFE OF EDWARD LIVINGSTON.
" Mr. F s* conduct appears unaccountable to me.
Does he or does he not approve of vigorous measures I
I still expect much good from his counsels. I see, by
the genuine speech of Lord North, that he disdains
treating I am convinced they don t know America
yet. I don t wonder at it ; we are hardly yet ourselves
apprised of the power we are able to exert, and that
makes many afraid to join in the cause."
The association here spoken of was one, the requisi
tion for which expressly excepted crown officers. " But
he scorned to avail himself of that exception," his son,
the Chancellor, afterwards declared, fi and went volunta
rily and signed, being the first and, I believe, the only
person holding a lucrative office in the government who
associated."
Judge Livingston s judicial independence, and coura
geous devotion to the cause of liberty, were put to still
sharper tests. He broke up a practice which he found
existing in the court, of granting general warrants to
custom-house officers to search for contraband goods, a
practice which the provincial government is said to have
had much at heart, and which had been sanctioned by
the courts in several of the colonies. And in 1765,
when Lieutenant-Governor Golden ordered the judges to
send up their proceedings in a cause, that of Force
versus Cunningham, after a trial and verdict, in order
to their being reviewed by the Governor and Council, he
perceived at once the abyss to which the judicial power
would be consigned by a compliance with the order ; and
he, with his brethren, flatly refused to comply, assigning
their reasons, which they published, as a warning to the
people of their danger. They were afterwards served
with a peremptory order of the King, commanding them
* Franklin s ?
HIS MINORITY.
27
to send up the proceedings ; but they absolutely declined,
of course at the hazard of losing their commissions.
This subject is mentioned in one of the Judge s letters
to his father. " The King and Council," he wrote, " have
determined the matter of appeal against us, contrary to
the highest assurances that we had from all hands, that
we should be successful in opposing it. We have, in
consequence, been served with the order of the King and
Council, and another writ to send up the proceedings ; but
we remain firm to our principles and will not obey. We
have reason to think that the order has been surrepti
tiously obtained. It does not appear that our agent knew
that the affair was pending in council, for at the very
time he was assured by the Secretary of the Board of
Trade that the instructions to Sir Harry More would
be so altered as to put an end to that controversy."
From these samples of his correspondence it is plain
enough that the father of Edward Livingston was one
of those strong men who, in the conduct of life, have a
double reliance, upon Providence, and upon themselves.
These extracts reveal, too, something of his humility, his
affectionateness, his gentleness, and his serenity. With
regard to his possession of these milder qualities there is
much external evidence. His wife, after many years of
widowhood, made a record of her testimony concerning
him, in which, after dwelling upon his public acts and
character, she attributes to him "an unequalled sweetness
of disposition," and " a piety that guided every action
of his life." One of his most intimate friends, William
Smith, the historian, was accustomed to say, " If I were
to be placed on a desert island, with but one book and
one friend, that book should be the Bible, and that friend
Robert R. Livingston."
28 LIFE OF EDWARD LIVINGSTON.
Margaret Beekman for her maiden name continues
to this day to be, in family history, her distinctive appella
tion was a woman of a large and heroic mould. I
presume that no woman not worthy to be thus character
ized ever reared such a family as hers. Of a plain and
vigorous understanding, a genial heart, a cheerful temper,
and a religious spirit unclouded by austerity, and well
imbued with the political principles of her husband and
father-in-law, she divided the most energetic devotion
between her country, her family, and her affairs. Facts
hereafter to be narrated will present her in a fuller and
clearer light than any descriptive words. Surviving her
husband almost a quarter of a century, bearing a brave
part in the perils and sufferings of the time, and living to
see the fulness of her eldest son s fame, as well as the first-
fruits of the greatness of her youngest, she is, for a con
siderable period, a part of our subject.
CHAPTER III.
EDUCATION AND EARLY ASSOCIATIONS.
Departure of General Montgomery for Canada School at Esopus
First Constitution of New York Robert R. Livingston Burning of
Esopus by the British Destruction of the Family Mansion at Clermont
Princeton College Dr. Witherspoon Study of Law Cultivation of
Philosophy and Poetry Lafayette The Family at Clermont.
TT^DWARD LIVINGSTON enjoyed, in one respect, a
favorable opportunity for becoming" a spoiled child.
All the idolatry which his family had for any member was
yielded to him from the first, as it was retained by him to
the last. Yet the species of tyranny which that kind of
worship engenders in common natures did not find any
lodgment in his. His brothers and sisters have all borne
testimony to that perennial sweetness of temper in the
child and youth, which, in the man, was something more
than philosophic, something more than simply Christian.
Once, and but once, they said, when he was about eight
years old, he was charged with violent conduct. The ac
cusation was brought by one of the sisters to the mother.
" Then go in the corner," said Margaret Beekman. " I
ani sure you have been very naughty, or Edward would
not have done so."
The home at Clermont was rural and secluded, a
plain large mansion overlooking the Hudson from the
forests and farming lands of the lower manor, with
rooms for many guests, as well as for the large number
of regular inmates.
Judge Livingston had also a town-house in New York,
30 LIFE OF EDWARD LIVINGSTON.
where the family resided in winter. The journey between
the two establishments was usually performed on board a
sloop, and was an affair of days instead of hours.
The greater part of what is now the State of New
York was then a wilderness, the settlements being* mainly
confined to the neighborhood of the Hudson and Mohawk
rivers.
Slavery was one of the institutions of the whole land,
and a large number of negro slaves formed a necessary
part of every household like that of Judge Living
ston.
Edward was kept at home till after his father s death,
which happened in December, 177^5 when he was in his
twelfth year. Like all his brothers and sisters, he was
of a sound and healthy constitution, and possessed from
the first his full share of that marked vitality which seemed
to destine them all for long life. What training and
influences shaped the growth of his mind during this ten
der period will be apparent enough from a glance at the
characters of the persons and at the circumstances already
mentioned, especially when it is added that even his sisters
were all politicians as ardent as intelligent. When he was
but a year old, his brother Robert had, on the occasion of
being graduated at King s* College, delivered a stir
ring oration in praise of Liberty,")* in which he had given
significant expression to the even then settled every-day
sentiment of the entire family and its circle. And when
the Revolution broke out, Robert was among its delibera-
* Now Columbia. the graceful propriety of his pronun-
t " In particular, Mr. Living- ciation and gesture ; and many of
ston, whose oration in praise of Lib- the audience pleased themselves with
erty was received with general and the hopes that the young orator may
extraordinary approbation, and did prove an able and /ealous asserter and
great honor to his judgment and abil- defender of the rights and liberties of
ities in the choice of his subject, the his country, as well as an ornament
justice and sublimity cf his senti- to it." New York Gazette of May
ments, the elegance of his style, and 30, 1765.
EDUCATION AND EARLY ASSOCIATIONS. SI
tive leaders, while Harry was an officer in the field. In
these surroundings there was everything to produce an
early awakening of the faculties, the sentiments, and the
imagination of the hoy.
His first teacher was a clergyman of the Dutch Re
formed church and of Dutch ancestry, known as Domi
nie Doll. This gentleman was a widower, and had then
an only child, a young lady of a frank and sprightly na
ture. With the daughter,* he lived for a time on the
most friendly footing in the family of Judge Livingston,
as tutor of the younger children.
Edward was nine years of age when his eldest sister,
Janet, was married to Richard Montgomery. This
couple had once met, some years before, when he
then a Captain in the British army was on his way
to a distant western post. The meeting had left its im
pression upon both ; and after considerable distinguished
service, he had returned to England, disposed of his
commission, and emigrated to New York. The marriage
soon followed ; and visions of long years of tranquil hap
piness upon a farm at Rhinebeck were entertained by
the pair. But their projected house was unfinished when,
attracted by his military reputation, the authorities of
the United Colonies called upon him to serve as one of
eight brigadier -generals in their new army. He ac
cepted reluctantly and sadly, declaring that " the will of
an oppressed people, compelled to choose between liberty
and slavery, must be obeyed." He met with no op
position from his wife. She accompanied him on the
* Robert, the oldest son, on future Chancellor ; and it happened
leaving home one day for Albany, that he actually brought back as a
inquired of Miss Doll, in his char- guest a gentleman who in due time
acteristically gallant manner, " Well, married the Dominie s daughter, and
what shall I bring home for you ?" with whom she led a happy lite at
" A good husband ! " was the lively Kinderhook.
response. " Agreed," replied the
3% LIFE OF EDWARD LIVINGSTON.
way to his final campaign as far as Saratoga, where she
received from his lips the last comforting assurance,
" You shall never have cause to hlush for your Mont
gomery."
The parting of Janet Montgomery and her "soldier,"
as she always afterwards called him, and the preparations
for the parting, were so melancholy as to leave a lasting
impression upon the friends of both. Edward, in his old
age, thus described a scene connected with those prep
arations, which had held a permanent place in his mem
ory. " It was just before General Montgomery left for
Canada. We were only three in her room : he, my
sister, and myself. He was sitting in a musing attitude,
between his wife, who, sad and silent, seemed to be read
ing the future, and myself, whose childish admiration
was divided between the glittering uniform and the
martial bearing of him who wore it, when, all of a sud
den, the silence was broken by Montgomery s deep voice,
repeating the following line, as one who speaks in a
dream,
" Tis a mad world, my masters,"
I once thought so, now I know it. The tone, the words,
the circumstances, all overawed me, and I noiselessly re
tired. I have since reflected upon the bearing of this
quotation, forcing itself as it were upon the young sol
dier at that moment. Perhaps he might have been con
trasting the quiet and sweets of the life he held in his
grasp, with the tumults and perils of the camp which
he had resolved to seek without a glance at what he
was leaving behind. These were the last words I heard
from his lips, and I never saw him more."
The elder brother, Harry Livingston, accompanied
Montgomery to Canada, whence he was destined to re-
EDUCATION AND EARLY ASSOCIATIONS. S3
turn in safety, though his youthful impetuosity was such
that the General suffered many fears on his account, and
sometimes heartily wished him home.
Having thus lost, within a few months of each other,
his father, his grandfather, and his celebrated brother-in-
law, Edward was shortly placed at school in Albany,
but very soon was transferred to Esopus, now King
ston, in the county of Ulster, on the west bank of the
Hudson, eighteen miles from home, under the tutelar
charge of his old friend, Dominie Doll, who had estab
lished a school at that place. Here he at once had to
learn several lessons besides those set down in the good
teacher s curriculum. In the first place, he was obliged
to forego the comparative luxury of the family-table, a
discipline from which he dated the facility with which, in
after-life, he accommodated himself, whenever it was
necessary, to the rudest fare. His friends were many
times amused by his description of his first dinner at
the Esopus farm-house where he had been placed to
board. Potatoes and a piece of pork composed the
whole bill of fare. The knife was put in the solitary
dish, and the schoolboy invited to have his share, " I
don t like pork ; we never eat it at home," was the re
sponse. " Very well, my little man," replied the host,
" nobody obliges you to eat it." A potato, sadly accept
ed, furnished the scanty repast. The second day brought
no variety. There, again, was the distasteful pork,
against which the protest was somewhat weakened by a
ravenous appetite. The third day fastidiousness suc
cumbed to hunger; and a course of pork and potatoes,
varied by nothing more refined, was entered upon, and
endured through the school term.
No boy, I suppose, ever gets through his school-life
without taking part, offensively or defensively, in a greater
OF EDWARD LIVINGSTON.
or lesser number of those conflicts which are miniatures
of the controversies of men. The first, if not the only
one of these hattles in which Edward engaged was
fought soon after his appearance at Esopus. The occa
sion was the moral necessity of backing up a statement
which he casually made among his fellows, to the effect
that at Clermont they had an ice-house in which ice was
preserved for family use through the summer, a state
ment which one of the boys, because he had never heard
of such a thing before, honestly but indiscreetly pro
nounced to be a lie.
Every Saturday he walked the eighteen miles to Cler
mont, and returned in the same manner every Monday.
Of these weekly journeys he retained vivid and pleas
ing recollections to the end of his life, attributing to
them the habit and love of walking which he ever after
retained, and to which he, in a great measure, owed, as
he believed, the health he preserved through that long
course of intense and continuous mental labors which
we are here beginning to trace. In these facts we can
read a volume upon the character of the good and
strong Margaret Beekman, who evidently had deter
mined that her youngest and favorite child should not
suffer too much from the want of a father s masculine
guidance. No wonder that she could afterwards point
proudly to that child in playful but triumphant refuta
tion of the doctrine that women are not competent to
educate sons.
Esopus then had a population of about thirty-five
hundred, and ranked as the third town in the colony.
There the first "Convention of the Representatives of
the State of New York" -having been elected to
meet in the city of New York on the 8th of July,
1776, and having, in order to avoid the neighborhood
EDUCATION AND EARLY ASSOCIATIONS. 35
of Lord Howe and his forces, held adjourned sessions
at White Plains, Haarlem, Philipse s Manor, and Fishkill
sought refuge for its deliberations in February, 1777-
And there, on the 0th of April, the first constitution
of the State was adopted in the convention.
Robert R. Livingston, seventeen years older than
his brother Edward, but still under thirty, was a con
spicuous member of this body. That, together with his
employment by Congress as one of a secret " Commit
tee for facilitating the Military Operations on Hudson s
River," in which capacity he was a constant, free-
spoken, and welcome adviser of Washington, prevented
his signature to the Declaration of Independence, though
he had labored with Jefferson s committee in revising
the draught of that instrument. He performed a similar
work in the New York convention ; and the new con
stitution, though adopted after deliberate and patient dis
cussion, was at last hurriedly printed and proclaimed.
The printing was done at the ancient village of Fish-
kill ; the proclamation was made in front of the Esopus
court-house, the secretary of the convention standing
upon a barrel, surrounded by the people while he read
the paper. Such scenes, with all their concomitant ex
citements and lessons, divided witfr his books and school
the daily attention of the young Edward.
Thus Esopus became the first and temporary capital
of the struggling, infant State. The first governor and
legislature chosen under the constitution met there in
September. Their accommodations were not luxurious,
nor were their duties of an easy sort. There was no
greedy and corrupt lobby to beset their official virtue;
but they were encompassed by rough and primitive dan
gers, and pursued their deliberations
" on the perilous edge
Of battel."
36 LIFE OF EDWARD LIVINGSTON.
Burgoyne was at the north, and Sir Henry Clinton at
the south, planning a conjunction, and a military posses
sion of the whole line of the Hudson, with a view of
cutting off communication between New England and
the rest of the country. In the attempted execution of
this scheme, Clinton, in conjunction with Admiral Howe
and Commodore Hotham, despatched Sir James Wallace
up the river with a flying squadron conveying about four
thousand men, commanded by General Vaughan. Be
yond the capture of forts Montgomery and Clinton,
the former commanded by the new Governor in person,
the latter by his brother, and the destruction of the die-
vaux-de-frise, boom, and chain which had been stretched
across the river at that point, the result was noth
ing but a good deal of safe and cautious marauding.
Boats, vessels, and mills were destroyed ; villages burned,
houses fired upon, and neighborhoods incapable of resist
ance pillaged. The Governor and legislature were dis
lodged from Esopus with the people of that village, and
the enemy thereupon plied the torch with such industry
that only a few houses were left standing ; but the
Governor, legislature, and people took refuge at Hurley,
a small village four miles distant, where the excitement
of the day of flight was varied by the hanging of a
British spy, named Taylor, within view of the conflagra
tion of Esopus.
The effect of this expedition was to rouse and exas
perate the whole Whig population to the point of im
placability. Vaughan returned to New York in safety.
Burgoyne, not so fortunate, surrendered his sword to
General Gates, in the presence of their two armies, at
Saratoga, on the 17th of October, only one day later
than the sack of Esopus.
The school of Dominie Doll was of course driven
EDUCATION AND EARLY ASSOCIATIONS. 37
away vvitli the Esopians, but, sharing the fortunes of the
new government, continued its existence for a time at
Hurley. Young Livingston had, in these events, occa
sion for an eccentric visit to Clermont. The house of
his mother, in which he had been born, and in which his
father and grandfather had lately expired, as well as
that of his brother Robert, was among those marked for
destruction by Vaughan s men on this expedition. At
the very time, two British officers, a wounded captain,
named Montgomery, and his surgeon, had been for
some time hospitably entertained by Margaret Beekman at
Clermont. They gratefully proposed to extend to the
house the protection of their presence and influence.
But the offer was politely yet firmly declined, on the
ground that the widowed proprietor did not desire any
such advantage over her neighbors and countrymen.
The sturdy matron determined to evacuate Clermont,
carrying off what needful articles she might. A part
of her furniture was buried, the remainder loaded in
wagons ; and when warned that the enemy was ap
proaching and not many miles distant, she set forth on a
weary journey eastward, accompanied by all her family
and retinue of servants. The timeliness of this depar
ture was proved by a column of smoke which the party,
after advancing a few miles, plainly saw rising from the
flames of the mansion they had left. This scene was
destined to recur to the memory of Edward, the young
est of the company, and to point an eloquent passage in
a speech to be delivered by him twenty years later on
the floor of the House of Representatives of the United
States. If the reader would have further illustration of
the robustness of Margaret Beekmari s nature, let him
picture to himself what actually occurred that high
bred dame, at the very moment of starting upon this
38 LIFE OF EDWARD LIVINGSTON.
journey, enjoying a hearty laugh at the figure made by a
favorite servant, a fat old negro woman, perched in sol
emn anxiety at the top of one of the wagon-loads.
The destination of the party was Salisbury, in Berk
shire, just beyond the border of Massachusetts, where
they secured refuge in a house which it is said is still
standing, and where they remained but a short time, the
hasty retreat of Vaughan s command rendering Clermont
a safe residence again. Mrs. Livingston, with her fam
ily, then returned to her home, and at once began the
work of repairing its desolation.
It was in the midst of all this tumult and danger
that Edward Livingston snatched the learning which
fitted him for college. He was entered a junior, at
Nassau Hall, Princeton, in 1779- The business of the
institution was in that year resumed, after several years
suspension, in the course of which a detachment of the
army of Cornwallis had been quartered for a time in the
college buildings, from which Washington had dislodged
them on the morning after the Battle of Trenton.
The President, Dr. Witherspoon, was an extraordi
nary man. His acquirements were large, his observation
keen, his humor rich, his understanding vigorous, and
his spirit bold. He combined the qualities of a learned
divine, an eloquent preacher, a prolific writer, and a pro
gressive statesman. Born and educated in Scotland, the
first forty-six years of his life were wholly spent in that
country, chiefly in clerical, scholastic, and literary pursuits ;
and he came to America but eight years before the
Declaration of Independence, with the sole view of tak
ing the college under his charge. And such, probably,
would have been the peaceful course of his subsequent
career, but for the war which presently scattered the
students to their homes or to the army. His occupation
EDUCATION AND EARLY ASSOCIATIONS. 39
being thus temporarily gone, he betook himself to politics,
and, adapting himself completely to the situation of af
fairs, became a zealous and noted rebel and practical man
of the time. His services, in and out of Congress, were
of the most energetic and industrious sort. He soon
became so prominent, that, as early as in July, 1776?
he was one of three leaders Putnam and Lee being
the other two selected for the honors of effigy-bu ruing
by the British soldiery under General Howe at Staten
Island. He was a plain-spoken man ; and when ques
tioned, on his first appearance in Congress, in 1776?
whether he thought the colonies were ripe for indepen
dence, he answered, " Ripe I Yes ; rotting." He was by
nature an athletic disciple ; and if the body now distin
guished by the designation of " muscular Christians " had
been distinctively known in his time, he would undoubt
edly have proved himself one of its most respectable ex
ponents. He returned to Princeton in 1779, to repair
the battered college buildings, renew the broken library
and apparatus, regather the students, and put the institu
tion again on its feet.
Young Livingston resided two years at Princeton, and
was graduated in 17^1, at the age of seventeen. He
had but five fellow-graduates, only one of whom, Wil
liam B. Giles, of Virginia, was destined to reach any
uncommon distinction.
As to what his habits of study were up to this period I
have not found any direct evidence, except his own state
ment, made long afterwards, that he had spent his time
rather idly at school, and still more so at college, and
that, as to the exact sciences, he passed them over with
the carelessness natural to his age, learning only so much
as was necessary to the obtaining of his degrees. But
the reader, when he comes to examine, in another part
40 LIFE OF EDWARD LIVINGSTON.
of this work, the series of letters from father to son
in which that statement occurs, will find that it is given
with reference to a standard of industry which most
scholars would consider severe, and that it is coupled
with a profession on the part of the writer of being
then " but an indifferent scholar," an evidently candid
profession, but clearly referring to a criterion which
would leave few good scholars in the world of active
men. In the same connection he adds, that, on mixing
a little with the world, he was fortunate enough to dis
cover the defects of his education, and then began to
remedy them, although he was much counteracted in his
endeavors by his former habits of idleness and his new
pursuits of pleasure. I infer, simply, that before leaving
college he did not acquire those habits of intense appli
cation which he perfected afterwards and cherished to
the end of his life.
What his friends thought of his mind and his tastes
at this early period is well indicated by a single sentence
in one of John Jay s letters to Chancellor Livingston,
written at Paris in 1783, after an absence of four years
from this side the Atlantic. " I send you," it runs,
" a box of plaister copies of medals : if Mrs. Livingston
will permit you to keep so many mistresses, reserve the
ladies for yourself and give the philosophers and poets
to Edward." * That the latter disposition was not
inappropriate will be evident to those who trace Mr.
Livingston s career, and who examine his principal, even
his latest performances. The distinctive culture of phi
losophy and poetry by a youth in these circumstances
shows plainly an uncontrollable bent of nature. The
reader, as he proceeds, will constantly observe a like
irresistible force leading the man, even in the midst of ex-
* Life of John Jay, pp. 174-181.
EDUCATION AND EARLY ASSOCIATIONS. 44
traordinary misfortunes, depressing cares, and real strug
gles, to reserve his best powers for philanthropic labors
and studies.
On leaving college, Edward immediately began the
study of law, at Albany, in the office of John Lansing,
afterwards the second of the New York chancellors.
For the next two years the distractions incident to the
war continued ; but this was not the sole nor the worst
difficulty then in .the path of the American law-student.
The decisions of none of the cis-Atlantic courts had yet
been reported, much less digested. There were yet no
American treatises. The rules of law and practice were
still to be shaped by the judges through the process of
adapting principles and precedents from English juris
prudence to our new institutions and statutes. Under
these disadvantages many great lawyers studied. James
Kent, Alexander Hamilton, and Aaron Burr were among
Livingston s intimate fellow-students. These, with others,
were in the habit of meeting, at Albany, at least dur
ing one season, for animated discussions of legal topics
and methods of study.
Livingston was soon strongly attracted to the civil law,
and thoroughly explored the Code, Institutes, Pandects,
and Novels of Justinian, in the original, with some of the
best commentaries upon them. In order to do this he
was obliged, at the same time, to perfect by himself his
knowledge of the previously neglected Latin.
After the evacuation of New York by the British, in
November, 17 83, the winter residence of his family
being in that city, he continued his studies there until
January, 17^5, when he was admitted to practice as an
attorney.
It was during the four years that intervened between
his leaving college and his admission to the bar that he
4 LIFE OF EDWARD LIVINGSTON.
first learned the real art of study, the division of the
day, and the rigid devotion to each pursuit of the hours
or minutes that belong to that pursuit. In his division
his old acquaintances, the philosophers and the poets, were
not forgotten ; general literature and novels had their
hours ; and society, which he frequented freely, scarcely
suspected him of heing a student. A scrap of gilt-edged,
Bath paper upon which at this period he wrote the follow
ing lines * has come to my possession, huried accidentally
among draughts of more serious compositions, accumu
lated during half a century.
" On Edward s table, emblem of his head,
See cards and pamphlets, plays and law-books spread.
Here lies a plea, begun with special care,
Ending with Stanzas on Augusta s Hair.
Gilt poets there with ancient classics mix ;
The Attorney s Guide lies close to * Scapin s tricks ;
Lo ! in the midst, a huge black lettered book
With dust begrimed, ycleped Coke.
Memento-like the Gothic volume lies,
And still Remember you re a lawyer ! cries ;
Alas ! unheeded cries, its voice is drown d
By frolic Pleasure s more attractive sound ;
She bids her roses in his fancy blow,
And laughing cries, Remember you re a beau !
At the same period he paid a hyper-scrupulous atten
tion to the mode in his dress, a temporary taste which
earned him a temporary title, that of Beau Ned, and
the remembrance of which was to furnish him with a
theme for occasional laughter to the end of his life.
* Mr. Livingston always retain- period referred to in the text. This
ed what he early manifested, a de- piece was afterwards given by him-
cided poetical taste. But genius is self or some member of his family
not indicated by any of his poetical to Mr. Gulian C. Verplanck, who,
compositions which I have seen, while editor of the Analectic Mag-
The best of these is a graceful trans- azine, as the successor of Irving,
lation, in rhyme, of the Basium Pri- published it, as the production of an
mum of the celebrated later Latin anonymous American poet, in that
poet, Johannes Secundus, which he periodical, in the number for De-
produced, as I suppose, at about the cember, 1814, pp. 517, 518.
EDUCATION AND EARLY ASSOCIATIONS. 4,3
Lafayette, soon after his first arrival in this country,
contracted with the whole family of Margaret Beekmari a
particular intimacy, which lasted for life, sustained by a
frequent correspondence during more than half a century.
Many autograph letters of this illustrious man, addressed
to Mrs. Montgomery as well as to Edward Livingston,
are before me. They are written in English, and gener
ally their diction is perfectly free, vigorous, and correct,
though they are marked by the occasional employment of
Gallic idioms. Some of them will be transcribed in the
course of our volume. The following sentences are ex
tracted from a long letter of the Marquis to Mrs. Mont
gomery, dated at Paris, February the 2d, 1786.
" I not to return to America, Madam ! I do assure
you this idea would render me most miserable. To sever
me from this fond hope would be half death to me. If
born in France, I have been educated in America. So
many friends there ; so many recollections at every step !
This year I am not able to go. But the year after this, I
hope I shall, as I want to place a visit before the time
when I will bring my son over to spend three years on
your happy side of the Atlantic. He has been made a
citizen of the United States, and he must go and learn
on what principles he can deserve the flattering gratifi
cation."
" Be so kind, Dear Madam, as to present my best and
most affectionate respects to the ladies and the gentle
men of your beloved family. I feel as if I was one of
them. Remember me often to them, and let my name
be now and then pronounced in the family conversation.
I heartily feel for John s misfortunes, which, added to an
irreparable loss, must be too heavy indeed. I think a
voyage with you will do him good, and I hope, as Ma
dame de Lafayette takes the liberty to entreat you with
44 LIFE OF EDWARD LIVINGSTON.
me, that your intended excursion to Europe mayn t be
deferred." *
The chivalric young foreigner produced, at the first, an
ineffaceable impression upon the mind and heart of Edward,
who made the most of his opportunity for cultivating a
friendship destined to be as enduring as it was pleasing
and honorable. Boy as he was, he was several times per
mitted to leave school to become a guest of the Marquis
at head-quarters. How he succeeded in fixing the interest
and regard of Lafayette, may be inferred from the fact
that when the latter, at the close of the war, was about
sailing for France, he had set his heart upon taking the
youth with him, and had exerted himself to overcome the
objections and refusal which had been interposed by Mrs.
Livingston, who, after reflection, had declared that she felt
that her son had work to do at home. He could hardly
give up the plan ; and when his young friend had accom
panied him some distance on the road to Boston, whence he
was to embark, he impulsively proposed still to take him
along, to assume himself all the dereliction, and to insure a
pardon from the mother, to be sued for from France.
This strong temptation for Edward s inclination ren
dered it such was with some difficulty resisted. It is
impossible here not to speculate upon the total change in
* During Lafayette s triumphal inquired of Colonel Fish, " Where
visit to this country in 1824, in Sep- is my friend Colonel Harry Living-
tember, the steamboat James Kent ston ? " Soon afterwards, while the
was chartered by the citizens of New steamer was at the Kingston dock,
York to carry their illustrious guest Colonel Livingston, having crossed
upon an excursion to Albany, stop- the river in a small boat from Rhine-
ping wherever he might wish along beck, came on board. As soon as
the river. On the way up, the party their eyes met, the two friends, the
spent a morning with General Mor- Marquis and the Colonel, now old
gan Lewis and Gertrude Livingston men, rushed into each other s arms,
at their country-seat at Staatsburg, embraced and kissed each other, to
and passed the evening festively at the astonishment of the Americans
Clermont, being entertained by the present. The Colonel had served
heir of Chancellor Livingston Af- under Lafayette in Rhode Island and
ter leaving Staatsburg, the Marquis at Valley Forge.
EDUCATION AND EARLY ASSOCIATIONS. 45
fortune and fate which might have awaited the American
boy, involved in the orhit of the young French nobleman,
destined first to guide a mighty revolution, and then to be
absorbed by it. But, though the careers of the two
friends were thenceforth to be as distinct as their hemi
spheres, the younger continued to be the other s " Dear
Edward " for upwards of sixty years.
The characteristic vigor and spirit of the children of
Margaret Beekman were as conspicuous in their amuse
ments as in their enterprises. They relate of Mrs. Mont
gomery that once, in advanced life, after entertaining all
day a guest of the heavy sort, she expressed relief at his
departure in an audible sigh. One of her nieces said to
her, " Why, aunt, you have not much patience with dull
people." " Ah, no, my dear," she answered, " I have
never been used to them." To the same purpose is the
testimony of Edward recorded, after many years of tur
moil and misfortune, in a letter to one of his life-long
friends. " The account," says he, " you give me of Mrs.
Du Ponceau has very much affected me. She is one of
my earliest and best friends, and the remembrance of our
early acquaintance connects itself with those scenes which,
of all I have since gone through, have left the strongest
and most pleasant impression on my mind. I allude to
the time when our numerous family (of which she was
always considered a daughter) were collected at Clermont.
You were a witness to the harmony that united, to the
gayety that inspired us under the auspices of that excel
lent mother who was never happy but when her children
and her guests were so."
CHAPTER IV.
EARLY PROFESSIONAL CAREER.
New York in 1785 The Bar Federal Hall The Mayor s Court
James Duane The Case of Rutgers versus Waddington Richard
Varick Egbert Benson John Sloss Hobart Brockholdst Livingston
Burr and Hamilton Early Professional Career of Edward Livingston
His Marriage Election to Congress.
THE city of New York retains hardly a trace of the
features it wore in 1785. Its population and the
area of its built-up portion are each forty times as great
as they were in that year. Chambers Street was then
a northern outskirt, beyond which the island was all as
rural as the vicinity of Kingsbridge, except the village
of Haarlem. Canal Street was a creek, Spruce Street
a swamp, and the whole neighborhood of The Tombs,
city prison, a fresh-water pond. Mayor Duane had a
farm, through which ran a winding brook, where Gra-
mercy Park is. The present Charlton Street passes the
site of the house at Richmond Hill to which Aaron
Burr carried his household gods every spring. Similar
farms and country-seats abounded as far, or still farther
south than these. Broadway was not paved or flagged
above Vesey Street. The Park was a rough, unenclosed
common. The Battery was the one fashionable place of
promenade. The great fire of 1776 had left a large
blot upon the face of the city, and most of the houses
which remained standing bore plain traces of the worse
than careless occupation of the enemy s soldiery. No
daily stage-coach as yet plied on the road to Albany,
EARLY PROFESSIONAL CAREER. 4/7
and travellers between the two cities usually braved the
perils and delays of sloop navigation on the river. The
newspaper was an infantile institution, and showed only
dubious signs of inherent vitality. A leading sample,
" The New York Packet," semi-weekly, swelling with
the Virgilian motto, " Tros Tyriusque mihi nullo discrim-
ine agetur" was a rusty little folio of four pages, and
sixteen columns, five of which, including a poet s cor
ner, were devoted to news and miscellany, parading a
frightful literary poverty, and the other eleven given to
curious advertisements, in which buyers and sellers, bor
rowers and lenders, dry and wet nurses, and those who
required the services of either, commonly directed their
correspondents to confer with the printer, Mr. Samuel
Loudon, who was at the same time printer to the State.
Wall Street and the metropolis had but one bank,
the Bank of New York ; and of that institution a
large proportion of the leading citizens were directors.
The first of the annual city directories, not published
till the following year, was a primer of eighty-two
coarsely printed pages.
Such facts, considered in connection with the present
magnitude and splendor of New York, furnish lively
illustration of the prodigious vitality which, repressed
and for a time smothered by the war, yet existed in the
young metropolis, ready to blaze up the moment of the
joint establishment of independence and peace. Immi
gration and building, all the branches of trade, and every
description of business, started at once upon a growth
which, to this day, has not ceased to appear magical.
There were special reasons why litigation should not
and did not, even at the first, lag behind the other de
partments of industry. The long military possession of
the enemy ; the losses arising from the suspension of
48 LIFE OF EDWARD LIVINGSTON.
rents, and damages done by loyalist tenants during a
reckless occupation of houses ; the destruction or re
moval of records, and consequent indistinctness of many
titles ; the processes for confiscation of property for tory-
ism ; the swift mutation in the relative value of money,
property, and securities, and the sudden tightening of
pecuniary obligations, the sense of which had been loos
ened for some years, gave rise to abundant questions,
which could only be settled in the courts.
The supply of first-rate abilities at the bar of New
York was, at that time, commensurate with the demand.
So small a community inevitably measured every candi
date for professional standing, and the unlearned or me
diocre aspirant stood at a fatal disadvantage among such
competitors as Robert Troup, Egbert Benson, Brock-
holdst Livingston, Melancthon Smith, Aaron Burr, and
Alexander Hamilton. The roll of the city bar numbered
less than forty members. Among the additions made
to the list during the few years following were Josiah
Ogden Hoffmann and James Kent.
The courts were held in a building which stood at
the corner of Wall and Nassau streets, where the Uni
ted States long afterwards erected their custom-house.
The old edifice had suffered a good deal of mutilation
during the military occupation of the city by the Brit
ish, and after the evacuation, having received alterations
and repairs, became " Federal Hall." In it the oath of
office was administered to the first President by Chan
cellor Livingston.
The Mayor s Court, though an inferior tribunal, be
came, under the administration of Mr. Duane, the favor
ite and really most important forum. Eight had been
the limited number of those who were allowed to prac
tice in this court ; but in 1 784 the restriction was re-
EARLY PROFESSIONAL CAREER. 49
moved, in favor of all attorneys and counsellors of the
Supreme Court. It was in consequence of this change
of policy, coupled with the high juridical reputation of
Duane, that the Mayor s Court suddenly acquired by
common consent a business and an authority scarcely
contemplated by the statutes creating it.
James Duane was connected with the Livingstons,
having married the eldest daughter of Robert, third
proprietor of the manor. He had practised law before
the Revolution with great industry and success ; had
been an active member of the revolutionary Congress
and of the first constitutional Convention of the State,
and an earnest advocate of the Federal Constitution ;
and he attained such reputation and authority as a
judge, that, after six years service as Mayor, Wash
ington pressed upon him an unexpected appointment to
the bench of the District Court of the United States
for New York, which he accepted, and retained with
increased distinction, till age and ill health, in 1794*,
drove him into retirement.
It was in one of the earliest causes tried in the
Mayor s Court, before Duane, in the year 1784, the
case of Rutgers versus Waddington, that Alexander
Hamilton, who had shown marvellous and precocious
military and oratorical abilities, first demonstrated, at the
age of twenty-seven, that he was a great lawyer. It
was an action for damages for the use of premises in
the city during the British occupation, brought by the
widow of a Whig who had been driven from his prop
erty, against a British subject who had occupied it under
permission from the enemy, an action specially authorized
by an act of the New York legislature, passed March 17,
1783, which declared that occupation under any mili
tary order should be no defence in such a case. The
7
,50 LIFE OF EDWARD LIVINGSTON.
defendant, nevertheless, pleaded the military possession
of the city by the British, and authority to himself to
use the premises for a part of the time from the com
missary-general, and from the Commander-in-Chief direct
ly for the remainder, together with the treaty of peace,
which in terms relinquished and released all claims
which the citizens of either nation might have against
those of the other on account of damage done to the
public or individuals during the war. The plaintiff de
murred to this plea, and upon the issue of law so pre
sented the cause was argued. The counsel for the plain
tiff were Messrs. Lawrence and Wilcox, Robert Troup,
and the Attorney-General of New York, Egbert Ben
son. For the defendant, William S. Livingston, Morgan
Lewis, and Mr. Hamilton appeared. The brunt of the
argument was sustained by Benson on the one side, and
on the other by Hamilton. The rights of the States,
and the relations of their sovereignty and that of the
Federal Government, were discussed in such a masterly
and exhaustive way as to settle what thence became
elementary doctrines upon those subjects. The decision
of the Court was, that the license of the British com
missary-general was legally insufficient to protect the
defendant from the plaintiff s claim for damages under
the statute ; but that the military possession by the en
emy and the authority from the Comrnander-in-Chief
constituted a perfect defence to the other portion of the
demand, notwithstanding the statute, which, the Mayor
held, could not have been intended to go to such a
length as a repudiation of the treaty between the Gen
eral Government and Great Britain, and which, if that
were its meaning, would be so far void, because contra
vening the Law of Nations, which the constitution had
made the law of the State. The legislature and a
EARLY PROFESSIONAL CAREER. 51
portion of the people felt a good deal of dissatisfac
tion with this judgment, a dissatisfaction which the
former expressed in resolutions, and which the latter
discussed in a public meeting, in whose proceedings an
active part was taken by Melancthon Smith, a promi
nent lawyer and politician.
Richard Varick was recorder of the city, and by vir
tue of that office, the Mayor s judicial colleague. He
had just commenced the practice of law in the city when
Independence was declared, whereupon he joined the
army, in which he served with credit, reaching the rank
of Lieutenant-Colonel during the war, and getting the
judicial appointment at its close. He was a stately gen
tleman, of high character, austere views, and mediocre
talents. He succeeded Duane in the mayoralty, and so
presided in the court for many years. Two or three
lawyers yet living speak of his judicial traits from per
sonal recollection. Their main reminiscences are that
he gave pleasing bar dinners, and that he was given to
reversing the humane maxim of the common law, and
presuming a person accused to be guilty until his in
nocence was pretty clearly established. Public whipping,
as a punishment for certain misdemeanors, was in his
time authorized by the laws of New York. He was, I
believe, the latest judge who pronounced this penalty
here. Some of his sentences of this kind and one in
particular, towards the end of his term excited some
popular indignation. He was finally, in 1801, removed
from the mayoralty on political grounds. In the news
papers of the time it is chronicled, that, after his dis
missal from office, a culprit against whom he had pro
nounced a sentence alleged to be as illegal as it was
severe, brought a civil action against him for the
wrong, an action which he was fain to compromise,
52 LIFE OF EDWARD LIVINGSTON.
without a trial, by the payment of five hundred dollars
as damages.
Egbert Benson was a very superior lawyer, not only
in point of technical learning, but also with regard to
the principles and philosophy upon which the law rests.
In those principles and that philosophy he was, in the
opinion of Chancellor Kent, more profoundly versed than
any of his compeers, except Hamilton. It was in his
office that Kent studied law. He had started in prac
tice at Red Hook, a little before the Declaration of In
dependence, after which he devoted himself to the Rev
olutionary cause. He was prominent in the work of
framing the new constitution and government of the State
of New York, and became the first Attorney-General
of the State. He was a man of great industry and
method, and acquired much curious miscellaneous learn
ing. He wrote an erudite memoir upon the names of
places, which has been published by the New York His
torical Society. He was fond of literary labor, but in
his style cultivated a sententiousness and brevity which
often lapsed into or bordered upon eccentricity and ob
scurity. A mild sample of this peculiarity is familiar
to the eyes of the New York bar, in the inscription of
a marble slab which he erected to the memory of his
friend, Judge Hobart, in the room of the city-hall first
occupied by the Supreme Court.
John Sloss Hobart appears to have shown no distin
guishing talent and no notable trait, but still to have
possessed such an assemblage of qualities as gave him
a leading and secure influence among his contemporaries.
Without any regular legal education he went, in 1777?
upon the bench of the first Supreme Court of New York,
from which he was, by the constitution, obliged to re
tire at the age of sixty years. Nevertheless, he was
EARLY PROFESSIONAL
5
afterwards appointed judge of the District Court
United States for the District of New York, by Pres
ident Adams, to whose party his attachment was firm,
if not bigoted. His judicial career was respectable.
He had been a prominent actor in the Kingston Con
vention, and represented New York in the Federal Senate
from February to April, 1 798 ; after which short sena
torial career his acceptance of the judgeship of the Dis
trict Court withdrew him from that body. On the
whole, he appears to have been one of those either lucky
or adroit steersmen who, in the voyage of life, are quite
sure to leave many an abler fellow-sailor behind.
Brockholdst Livingston a kinsman of our subject
has been mentioned in his place in the first chapter.
He was an accomplished scholar, a brilliant advocate, and
a successful judge. Those who would like to see a
sample of his general learning and his wit will find an
extraordinary opinion which he delivered from the bench
of the Supreme Court of New York, in the adjudged
case of Pierson versus Post, by referring to 3 Caines s
Reports, 17-5. The question before the court related to
the rights of a hunter in the game he had started, and
after long chase nearly captured, as against an interloper
who, chancing to come by at the eleventh hour, killed
and appropriated the animal. The decision of the court,
resting upon strict law, was adverse to the meritorious
Nimrod s claim for redress. Judge Livingston took
the. occasion to express his dissent from the conclusions
of his brethren, where his dissent could do no harm,
in an opinion of considerable length, in which the gravity
of the ermine laboriously treads the verge of refined
drollery. It is such an opinion as Charles Lamb might
have prepared for hypothetical delivery upon the same
state of facts, unhampered by any judicial responsibility.
54 LIFE OF EDWARD LIVINGSTON.
This was in 1805, only a year before Judge Livingston s
promotion to the bench of the Supreme Court of the
United States.
An incident in Brockholdst Livingston s career illus
trates a remarkable change which the customs of New
York have undergone. In May, 1798, while he was
practising law, he wrote, for the " Argus " newspaper, a
humorous paragraph, relating to a meeting of political
opponents assembled to praise John Adams and his ad
ministration. The point of the paragraph was, that the
meeting was one of young men, presided over by Mr.
Fish, a stripling of about forty-eight years, and graced
by the presence of Master Jemmy Jones, another boy of
sixty, a proof of patriotic zeal on the part of the
rising generation upon which the country was congrat
ulated. The indignation of the last-named of the two
gentlemen thus ridiculed found expression in a demand
for an explanation from the writer, made while the latter
was walking, accompanied by his wife and children, on
the Battery, a demand ending in an assault with a
cane. For this Mr. Livingston promptly challenged,
fought, and killed Mr. Jones, and quietly returned to his
family promenades, a course which, if it did not ac
celerate, appears at least not to have retarded his ad
vancement.
Central figures among the lawyers of the city at that
period were two persons of small stature but gigantic am
bition, whose several fates attracted and have retained to
this day a wonderful popular interest, Aaron Burr and
Alexander Hamilton. Their subsequent duel, in which the
latter fell, produced as remarkable effects upon the man
ners of the time as upon the destinies of the parties. The
result was an advantage to the fame of the falling man
and a fatal victory to the survivor. An encounter, in its
EARLY PROFESSIONAL CAREER. 55
main features of an e very-day character, lifted the former
into a sudden apotheosis, and hurled the other into complete
outlawry. A provocation not less real than such provoca
tions as were ordinarily recognized hy the code of honor
which prevailed, a correspondence not more foolish than
was the fashion, a comhat not so revolting in its circum
stances as often took place between prominent persons
about the same time without disturbing the nerves of the
community, all came in one day to the knowledge of the
public, and, presto ! change ! Hamilton was a godlike and
immaculate creature, cut down in the flower of his virtue
by a smooth and malignant being wearing the human shape,
but of a power and wickedness hardly less than Satanic,
a judgment which maintains its hold upon the popular
mind to this day. In this judgment there was a double
exaggeration. Hamilton was not a saint, by any means,
nor was Burr quite a Mephistopheles. The latter had
commenced his downward course, but he was still Vice-
President of the United States with at least a chance of
reaching the higher office, and with the mental resources
which had enabled him to rise, undiminished. He had
some redeeming traits; but he was radically dishonest, prof
ligate, and criminally aspiring. The penalty he paid was
not so absolutely unjust as it was out of proportion to his
sins, when compared with the punishment which the world
commonly metes out to similar, even the worst offenders.
In politics and in life, his principal faith was in the power
of subtle and sleepless intrigue ; and when that power de
serted him, his fall was like Lucifer s. There is a logical
fitness in the eventual overthrow and ruin of such a man ;
but the altogether unusual rancor with which he was
hunted by public opinion for thirty-two years, while he
lived, and the pertinacity of reprobation with which his
memory as a foil to that of Hamilton has ever since
56 LIFE OF EDWARD LIVINGSTON.
been visited, have been nothing less, in a good degree,
than a notable triumph of gossip and a caprice of his
tory.
Edward Livingston began his professional career in
this field and among these competitors. That he gained
at once a respectable, and soon an eminent standing, would
prove both his early industry and his uncommon parts.
At the starting-point he signally deviated from the usual
history of great lawyers. Poverty, obscurity, threadbare
patience, and irrepressible tenacity of will are, much of-
tener than otherwise, the combination which leads through
special triumphs to high forensic reputation. No other
profession or art exacts from those who would excel in it
more absolute devotion than the law. Affluence and ease
are clogs upon that kind of devotion. He who reaches the
highest rank as a lawyer, in spite of an easy start, must
be gifted with an extraordinary bent and an extraordinary
will. Mr. Livingston did reach the very pinnacle, as we
shall see, without undergoing the customary early struggle
against dire necessity. He had a large family connection
in the city, as well as in the State. His brother, the Chan
cellor, had practised there with reputation for several years
preceding the Revolution. He had other relatives in the
profession, and still others who were active and opulent
merchants, and his family name was a strong influence in
the community at large. His own expectations as to
hereditary property, if not large, were something and in
definite ; and he was entirely beyond any pressure of im
mediate want. On the contrary, he was the petted young
est child of a large, social, and even gay household. The
town-house which had been the winter residence of his
father when living, continued in the possession of his
mother during all these post-Revolutionary years; and
here Edward lived with her, and kept his office. The
EARLY PROFESSIONAL CAREER. $J
house was No. 51 Queen Street, which was a part of
the present Pearl, ahove, and beginning at, Wall Street.
The hospitable city drawing-room of Margaret Beek-
man was frequented by many brilliant men, including most
of the members of the bar just mentioned, attracted by
the society of Mrs. Montgomery and of her sisters yet
unmarried; and the house was much visited by officers and
gentlemen of foreign birth, particularly Frenchmen. All
the family conversed fluently in the French language, and
since their intimacy with Lafayette, had been especially
inclined to cultivate the acquaintance of his friends and
countrymen.
The staple of conversation in this set was not small-
talk, but included earnest discussions of politics and litera
ture. Articles upon such topics, written for the public
papers, were often read there by their authors before pub
lication. But the tone of this society was not always
solemn; and whatever was ludicrous was seldom passed
over without due attention. One evening the company
listened to a eulogy upon Washington, read by a foreigner
but written in English, so full of unnaturalized idioms that
the performance was received at first with smiles, arid
finally with peals of inextinguishable laughter.
Mrs. Livingston invariably left the company and re
tired to her own apartment at ten o clock, after which
Mrs. Montgomery and some of her most habitual guests
were fond of a game of whist, a game not interdicted
by the pious old lady, but which, in deference to her tastes,
they never commenced in her presence. Inquiring on one
occasion of a guest, who was a relation and a judge, how
late it was, and being told that it was ten o clock, she
playfully replied, " Ah, Maturin, is it not always that
hour by your watch ? " and laughingly retired.
The good old lady was a close observer of society in
8
58 LIFE OF EDWARD LIVINGSTON.
the city. To an intimate friend, Mr. Vanderkemp, she
wrote from town, in 1792, " This place is all gayety and
festivity, parties every night in the week, fortunes
tumbling in the laps of very many people in so rapid a
manner as was never dreamt of before. In this flow
of riches dissipation abounds. Gaming is carried on to
a great extent, and large sums lost and won. A gentle
man from Philadelphia is sitting by me, who relates that
Mrs. K. took home four hundred dollars won here at the
card-table in one sitting. Surely these are great evils.
In a retrospective glance at all the great empires of by
gone ages, cannot we date their downfall and departure
from public virtue and patriotism to the period when
wealth and power abounded! Luxury and dissipation
with gigantic strides then overturned all that had been
achieved by their virtuous fathers, and anarchy and ruin
followed. These are examples Americans ought never
to lose sight of, and they must make them tremble for
our infant empire."
If Edward, whose disposition was always social, was,
in these circumstances, tempted on the one hand to
forego in any degree that intense application which ne
cessarily precedes success at the bar, he was stimulated
on the other hand by the expectations which the family
had formed in his behalf. They were proud of his talents,
and anxious for their practical display. He managed
without neglecting society to include in his professional
reading a profounder study of the Roman law, at the
same time that he gave much attention to general lit
erature, and especially to the still further perfecting of
his acquaintance with several ancient Greek and Latin
authors.
On the fly-leaf of his Longinus he wrote, early in
this period, the following lines :
EARLY PROFESSIONAL CAREER. 59
" Longinus, give thy lessons o er ;
I do not need thy rules :
Let pedants on thy precepts pore,
Or give them to the schools.
The perfect beauty which you seek,
In Anna s verse I find ;
It glows on fair Eliza s cheek,
And dwells in Mary s mind."
The three ladies here celebrated were the daughters
of Charles McEvers, Esquire, a merchant of New York.
Their beauty and accomplishments were such as to make
the above compliments not mere empty flattery. The
oldest, Mary, was Edward s choice, and they were mar
ried on the 10th of April, 1788. She was a person of
a striking and refined appearance, and known for the
sterling and sturdy character of her religion and virtues.
The mutual inclination of the parties was seconded by
the approbation of both families, and the alliance was
happy in every way.
Of this period, extending to the year 1794s little rel
evant to our subject remains to be said. Mr. Livingston,
leading a life of continuous labor, study, and perfect
domestic happiness, grew steadily in reputation, until, at
the age of thirty, he was eminent in his profession, es
pecially as an advocate, distinguished for an easy, copious,
and polished oratory, a dignified and courteous demeanor,
and a steady and influential character. The even tenor
of the course just described had met with no variation
for nine years, except that during the popular struggle
which resulted in the adoption of the Federal Constitution
he had felt a lively interest and had taken an active part
in favor of the measure, and had all the while cultivated
a standing and influence in the then forming Republican
party, a thing, with his family connections to aid his
own exertions, very easily managed. This led, in 1794,
to the interruption of his professional career, in his
(30 LIFE OF EDWARD LIVINGSTON.
nomination and election as a Representative in Congress.
On this event, his mother, being congratulated by her
friend, Mr. Vanderkemp, wrote in reply, " I thank you
for your good opinion of my son Edward s election.
If high and virtuous principles joined to a clear head
can recommend him to the confidence of his fellow-cit
izens, he will assuredly enjoy it."
CHAPTER V.
SIX YEARS IN CONGRESS.
A Political Canvass in 1794 Eminent Men in the House of Repre
sentatives Andrew Jackson Address to the President Trials of
Randall and Whitney Exertions in Behalf of American Seamen De
bates on Jay s Treaty Lafayette at Olmutz Establishment of Naval
Department Alien and Sedition Measures Speech against the Alien
Bill John Marshall Debate on the Case of Jonathan Robbins
Early Attention of Mr. Livingston to the Condition of Penal Laws Elec
tion, in the House, of Jefferson to the Presidency.
MR. LIVINGSTON S election, as a member of the
fourth Congress of the United States for the city of
New York, took place in December, 1794* ; and he was
reflected, in 1796 and 1798, to the two following Con
gresses. The State of New York then had ten members
in the House of Representatives, and the city of New
York constituted a congressional district. In the first of
these elections John Watts was his competitor ; in the
second, James Watson ; and his own kinsman, Philip
Livingston, in the third. The contest on either of the
first two of these occasions was not a very polite warfare.
I. Mr. Watts was the member for the same district in
the third Congress. He was a partisan of the Adminis
tration, and had voted industriously to sustain all its meas
ures. He was of good family, but his talents were not
shining, and he is not recorded as having articulated
anything but " aye " and " no " during his congressional
career. His friends admitted he was no orator, but
claimed that he was all the better voter on that account ;
62 LIFE OF. EDWARD LIVINGSTON.
while they gave his young rival credit for showy parts,
and thence argued that he was not so safe a legislator.
The machinery for the nomination of candidates was
not then such a complicated mystery as it has since grown
to he. Party organization in this country was not yet a
science. Regularity came to be understood afterwards.
There was no Convention, as the term is now used ; no
delegates with credentials, and no contested seats. But
the friends of each candidate met, by some unrevealed
arrangement, at a tavern, and, placing one of their num
ber in the chair, made their nomination in a series of
resolutions of a vague character, indicating rather a per
sonal preference than definite political views. In chron
icling the proceedings, one formula served both parties.
Each report stated, that, " at a meeting of a respectable
number of citizens, at Hunter s hotel, on " such an even
ing, " for the purpose of considering of a proper candi
date to represent this district in the next Congress, the
following resolutions were passed," etc. The newspapers
printed the accounts in the same words, and left their
readers to learn, by further investigation, how the candi
dates differed in principles and party associations.
But all this was soon made clear enough ; for tKough
parties were not yet nominally much organized or defined,
all men were taking sides in earnest with or against the
administration, and the terms Federalist and Republican
were already beginning to have pretty distinct significa
tions. Livingston was a Republican in nature, in opinion,
and in associations. Watts was a Federalist, and, during
the canvass, was accused by his opponents of having been
a Tory in the Revolution.
Little was said or written concerning the political char
acters of the candidates, but much was said and written
relating to their private characters. An anonymous par-
SIX YEARS IN CONGRESS. 53
tisan, over the signature of " Senex," made, in a com
munication to the " Daily Advertiser," an insidious hut
most virulent attack upon Livingston, by declaring that
the character of Watts was unexceptionable ; that his
property had not been reduced by extravagance, nor
swelled by extortion ; and that he possessed the merit
of not being a pretended bankrupt nor a speculator.
The writer begged electors to beware of undue admira
tion for a babbling eloquence, and to bear in mind that
the tongue of Cicero, the discernment of Locke, and
the fancy of Shakspeare, blended together, if accom
panied by a corrupt and wicked heart, only furnish the
means of becoming more eminently mischievous. The
tirade was wound up by a quotation from Cicero s de
nunciation of Catiline.
Mr. Livingston published, over his own name, a digni
fied note to the editor, in which he referred to the commu
nication of "Senex," and to oral slanders of similar but
more direct import, which he understood were passing
from mouth to mouth ; and informed those who were not
personally acquainted with him that he had suffered some
pecuniary ill-luck and embarrassment, but that he had
contrived to meet all his obligations honorably and prompt
ly, and, especially, that he had never settled any debt for
less than its full amount. But he had a champion of less
temper, "A Plebeian," who published, in "Greenleaf s
Journal," a vehement answer to " Senex," accusing him of
outrageous malice and cowardice, and offering, if he would
divulge his real name, to impart to him an impressive
lesson in good manners, such as, in " A Plebeian s " opin
ion, he plainly needed and richly deserved.
The city was then divided into seven wards, in each of
which, except the second and third, Mr. Livingston led
his competitor at; the election. The whole number of bal-
(34 LIFE OF EDWARD LIVINGSTON.
lots cast was 3,481 ; of which 1,843, or a majority of
205, were for Livingston.
The new memher first took his seat in the House of
Representatives at Philadelphia, on the 7 tn of December,
1795. He was not one of those forward orators who
make half a dozen speeches on the day of their first ap
pearance in a legislative body, and so forfeit all hope of
influence in their new sphere ; but, though entirely con
scious of his powers, he was rather sparing of their dis
play, and acted like a man whose aim was as much to
save a reputation as to gain one. The first time he
spoke, in proposing an important motion which was car
ried, he declared himself such a novice in parliamentary
proceedings as not to know Avhether he was in order or
not.
Of course, Mr. Livingston was in the opposition,
under both Washington and Adams ; but his tone in oppo
sition was always dignified and moderate, which is more
than can be said with respect to that of his party at
large on the floor. In a very short time, he had acquired
such weight in the House as has not often attached to
so young a member.
The most notable men then in the House of Repre
sentatives were Fisher Ames and Theodore Sedgwick of
Massachusetts, Albert Gallatin of Pennsylvania, and Wil
liam B. Giles and James Madison of Virginia. Andrew
Jackson was a representative in that Congress from the
woods of Tennessee, the first and then sole member
from that State ; but he was not elected till the autumn
of 1796, and he first took his seat on the 5th of Decem
ber in that year, it being the first day of the second
session.
Early in each session, the whole House in a body
called on the President, and presented an address in an-
SIX YEARS IN CONGRESS. 65
swer to his speech at the opening of both Houses. On
each occasion, Mr. Livingston thought the address as
prepared was too undiscriminating in praise of the Ad
ministration, and he was in favor of qualifying the ex
pressions accordingly. The last time, he and Jackson
voted together in a small minority against the address
as it was carried.
In December, 179<5, the trials of Robert Randall and
Charles Whitney before the bar of the House were
commenced. The charge was a breach of privilege in
attempting to bribe members. The proceedings occupied
considerable time, and brought out explanations from
a large number of Representatives, which showed that
Randall, having a scheme for purchasing from the Gov
ernment, at a nominal price, the wilderness which has
since been transformed into the State of Michigan, naive
ly supposed that the best as well as most direct way of
achieving his purpose was to take in a clear majority
of both Houses of Congress as partners ; and he accord
ingly broached the subject to quite a number of the most
influential members before he was arrested. After he was
brought to the bar, a committee of privileges, consisting
of seven members, was appointed, and instructed to con
sider and report the proper mode of proceeding. Mr.
Livingston was selected as one of the committee. The
accused were allowed to appear by counsel, and the accus
ing members reduced their several statements to the form
of affidavits, ajid submitted to cross-examination. Mr.
Livingston took but little part in the discussions to which
the case gave rise ; but at the close of the trial of the prin
cipal offender he brought in two resolutions, the first
declaring Randall guilty, and the second directing that he
should be called up to the bar, reprimanded by the
Speaker, and recommitted until the further order of the
9
66 LIFE OF EDWARD LIVINGSTON.
House. The resolutions were adopted, and carried into
effect.
The case against Whitney was not so clear. He was
interested in the scheme, but in the business of opening
the project to members of Congress had been either more
circumspect or more indolent than Randall ; so that the
evidence against him was insufficient to* convict him, and
he was, by resolution of the House, discharged. Living
ston voted for the discharge, on the ground of a want of
legal evidence upon which to rest a conviction of the
prisoner ; though he confessed that the impression on his
mind was that both Randall and Whitney were guilty.
" They have not been in good company," he said. " I do
not like the proposal they have made to members the
better because it originated with British merchants.
Timeo Danaos et dona ferentes* I dread these Britons
and the gifts they bring."
In February, 1796, the young member originated in
the House a measure which evinced the early bent of his
character towards active philanthropy. It was a measure
for the protection of American seamen, who had been
extensively impressed into the service of foreign powers,
especially that of England. He complained eloquently
of the apathy of the Government on the subject, and de
clared that he should always think it his duty to strive
to obtain for this ill-treated body of men some relief. He
succeeded, not without opposition, in procuring a refer
ence of the subject, and, afterwards, the passage of the
act of May 28, 1796.
While the report of the committee was before the
House, Mr. Livingston made the following remarks,
which show the nature of the opposition he met with in
this endeavor, and the spirit with which he encountered
it : " On the introduction of this business into the House,
SIX YEARS IN CONGRESS. 57
it was said that a young member had thrown obloquy on
the Government. I uttered nothing but facts. I said
that the distressed American seamen had for five years
looked in vain for relief. The Government may have had
prudential reasons for its conduct. I thought it time,
however, the subject was attended to. It is true, I am
young; but I am not inattentive to the public business,
and I shall always hold it my duty to persevere in such
measures as appear to me calculated to promote the
public good ; nor shall I be deterred from engaging in
a business because it may not have been attempted
before, for that principle would shut out all improve
ment."
When Livingston had been three months in his seat,
an occasion arose for the display of his powers. The
House was called upon to make the appropriation re
quired to carry into effect the treaty with Great Britain
of 179^5 the work of Mr. Jay. The treaty had given
rise to great bitterness and excitement in Congress and
throughout the country. In the House, the opposition
was all but sufficient to defeat the appropriation, though
the amount was only ninety thousand dollars. The dis
cussions there occupied the best part of March and April,
1796. They were divided into two distinct debates, each
consuming about a month. The first began on a prelim
inary resolution offered by Mr. Livingston, calling on the
President to lay before the House a copy of the instruc
tions to Mr. Jay, together Avith the correspondence and
other documents relative to the treaty, excepting such
as any existing negotiation might render improper to be
disclosed, and continued after that resolution had passed
and the President had refused to comply with it, upon
further resolutions brought forward by Mr. Blount of
North Carolina, protesting against the refusal. The
68 LIFE OF EDWARD LIVINGSTON.
second was upon a resolution making the appropriation
for carrying the treaty into effect.
These two debates brought out all the intellect and all
O
the eloquence of the House. Uncommon refreshment is
to be found in turning to these discussions from perusing
the usual parliamentary efforts of the statesmen of our
era. A large number of orators, whose names oblivion
has since overcome, vied in wisdom, temper, and eloquence
with such men as James Madison, William B. Giles,
Theodore Sedgwick, and Fisher Ames. The celebrated
Bostonian delivered, on this occasion, what is known as
his greatest speech.
The steady pertinence of all that was said on the floor
to the exact matter before the House, notwithstanding the
excitement which filled the atmosphere, was marvellous.
In the course of thirty-two speeches there was not, I
believe, one departure from the question. It was,
throughout, a fine clash of genuine convictions as to
the relative rights and obligations, under the Constitution,
of two principal branches of the Government.
Mr. Livingston opened the debates with a general
statement of the views which influenced him in bringing
forward his resolution. He desired the information, to
enable the House to take whatever action might seem fit
in the light of the information when obtained. If it
should show that the officers who had negotiated the
treaty ought to be impeached, then their impeachment
would turn out to be one of the ultimate objects of the
call for papers. Such a purpose could not be definitely
declared or entertained by the House until the papers were
seen. The House, as the accusing organ of the govern
ment and guardian on every occasion of the country s
rights, was entitled to the information, for the purpose
of elucidating the conduct of the officers. But he placed
SIX YEARS IN CONGRESS. gg
the demand mainly upon the hroad ground that the House
was vested with a discretionary power of carrying the
treaty into effect or refusing it sanction.
The members took sides at once, and spoke alternately,
for and against the resolution, from the 7th till the 24th
of March. Gallatin, Madison, and Giles were among
the earliest and most strenuous supporters of the resolu
tion ; Sedgwick, and John Williams of New York, were
conspicuous in opposition to it. All these and several
others had delivered very elaborate arguments upon the
question before Livingston rose, on the 19th of March,
to make his principal effort.
The delivery of this speech occupied nearly a day,
and it was a wonderful performance for so young a man
and a statesman so inexperienced. A reader of all that
was said on both sides of the question, if ignorant of the
fame of any of the orators, would pronounce this one
to be the Nestor of the debate. There is no sign of
youthful ambition in the style or in the matter. The
fruits of earnest research and reflection, aided by a wealth
of constitutional and historical learning, are set forth by
him in an easy diction, and in a wise and quiet tone
worthy of a legislative patriarch. The following lively
passage, however, exhibits a fine and rapid blending of
argument, eloquence, humor, and dignity :
" Thus, to whatever source of argument we refer, we
find the constitutional power of this House fully estab
lished ; whether we recur to the words of the Constitu
tion, where the power is expressly given and is only to
be lost by implication ; whether we have recourse to the
opinions of the majorities who adopted the Constitution,
to the uniform practice under it, to the opinions of our
constituents as expressed in their petitions, or to the
analogous proceedings in a government constructed, in
70 LIFE OF EDWARD LIVINGSTON.
this particular, like our own. Yet, after all this, we are
told that if we question the supremacy of the treaty-
making power, we commit treason against the constituted
authorities, and are in rebellion against the government.
These are grave charges, and made in improper language.
I have not been so long in public life as those gentle
men who make them, but I will boldly pronounce them
unparliamentary and improper. Besides, this language
is wrong in another view : it may frighten men of weak
nerves from a worthy pursuit. For my own part, when
I heard the member from Vermont compare the authority
of the President and Senate to the majesty of Heaven,
and the proclamation to the voice of thunder; when he
appealed to his services for his country, and showed the
wounds received in her defence ; when he completed his
pathetic address by a charge of treason and rebellion,
I was for a moment astonished at my own temerity ; his
eloquence so overpowered me, that
Methought the billows spoke and told me of it,
The winds did sing it to me, and the thunder,
That deep and dreadful organ-pipe, pronounced
the charge of treason. I was, however, relieved from
this trepidation by a moment s reflection, which convinced
me that all the dreadful consequences arose from the
gentleman s taking for granted that which remained to
be proved. He had only assumed that the measure was
unconstitutional, and the rest followed, of course. From
my soul, I honor the veteran who has fought to establish
the liberties of his country. I look with reverence on
his wounds, I feel humbled in his presence, and regret
that a tender age did not permit me to share his glorious
deeds. I can forgive everything that such a man may
say, when he imagines the liberty for which he has fought
is about to be destroyed ; but I cannot extend my charity
SIX YEARS IN CONGRESS. Jl
to men who, without the same merits, coolly reecho the
charge."
The drift of this argument, and of the other efforts
on the same side of the question, was that the organic
provision that u the Constitution, the laws made in pur
suance thereof, and treaties made under the authority
of the United States should be the supreme law of the
land," was intended as an enumeration, descriptive of the
relative force of Constitution, laws, and treaties. The
first in authority was the Constitution, which no other
act could operate on. The second in order were the
laws made in pursuance of the Constitution; and the third
were treaties, when they contravene neither the Consti
tution nor the laws. The last must be subordinate to
each of the other two, as would be reasonable, or else
override both, as would be absurd. This view of the
subject was enforced by an elaborate examination of the
nature and object of the treaty-making power, and its
analogy to that vested in the Crown by the British con
stitution, under which several instances were cited of the
practice of Parliament, by virtue of its general legislative
authority, to give or withhold its sanction to treaties
concluded by the King. And besides, cases were adduced
in the then very brief history of our own government,
in which, as Mr. Livingston asserted, the discretion of
the House of Representatives over the subject of carry
ing treaties into effect had been recognized by the Presi
dent, acquiesced in by the Senate, and acted upon by the
House.
The question was taken on the 4th of March, when
the resolution was adopted by a vote of 62 yeas to 3J
nays. On the 30th, the President responded to the call,
in a courteous message, in which he refused to com
ply with the resolution, on the ground that to admit a
72 LIFE OF EDWARD LIVINGSTON.
right in the House to make such a demand would be
the establishment of a dangerous precedent. Such a
right he distinctly denied. The nature of foreign ne
gotiations, always requiring caution and sometimes de
pending on secrecy for their success, and the inconvenient,
dangerous, or mischievous effect which publicity might
often exert on future as well as on unfinished negotiations,
had made necessary the express provision of the Consti
tution, vesting the treaty-making power in the President,
with the advice and consent of the Senate only. The
message declared that it did not occur to the President
that the inspection of the papers asked for could be
relative to any purpose under the cognizance of the
House except an impeachment, and that such a purpose
the resolution failed to express. The grounds of the
presidential construction of the clause in question were
set forth with care and in full in the message, which
embodied the substantial points of all that the cham
pions of the Administration had said in the House in the
discussion of the resolution.
The message was referred to a committee of the whole
House. After several days further debating, two reso
lutions were carried, by 57 yeas against 35 nays : the
first disclaiming any agency in the making of treaties,
but insisting that it is the right and duty of the House
to deliberate on the expediency or inexpediency of carry
ing into effect a treaty which stipulates regulations on any
of the subjects submitted by the Constitution to the
power of Congress, and depends for its execution on a
law or laws to be passed ; the second declaring that it
is not necessary to the propriety of any application from
the House to the Executive, for information to which the
House is entitled, that the purpose for which such in
formation is sought should be stated in the application.
SIX YEARS IN CONGRESS. 73
Having undertaken to define its rights in such cases,
the House proceeded to consider whether the appropria
tion needed to carry out the treaty should be made.
The debate which followed occupied sixteen days. It was
in it that Mr. Ames made, in favor of the measure, the
finest recorded display of his powers. Madison, Gallatin,
and Giles labored with their party to defeat it. Living
ston took no part in the discussion, but voted against
the appropriation, which, on the final division, was carried
by the nice vote of 51 yeas against 48 nays.
On the last day of the second session, March 3, 179? 5
a resolution was brought forward in the House, recom
mending some kind of interposition by the President in
behalf of Lafayette, then at Olmutz. Mr. Livingston
spoke with much feeling and eloquence in support of the
resolution, which was nevertheless lost, only twenty-five
members voting for it. Washington had considered the
subject of official exertion towards the release or relief
of our country s noble and early friend, and had con
cluded that such exertion would be inexpedient and
useless. Unofficial efforts were tried, but proved vain ;
and the deliverance of the illustrious captive, having
been denied by Austria to the entreaty of Washington,
was finally yielded to the persuasion of Napoleon s
arms.
II. The second election of Mr. Livingston to Congress
was by a majority of 550 votes, the seventh ward of
the city having been transferred to the Westchester
district. The celebrated De Witt Clinton was secretary
of the meeting at which the nomination was made. The
canvass was more spirited than the former one. The
candidate had earned, or at least now incurred, the
bitter and active opposition of Alexander Hamilton, who,
10
OF EDWARD LIVINGSTON.
during the three days of the election, visited the several
polls for the purpose of influencing electors in favor of
the Federalist candidate, James Watson. Mr. Hamilton
was accredited, erroneously, I presume, with the author
ship of a handbill which was much circulated at the
polls, and which set forth multitudinous reasons for re
turning Mr. Watson in Mr. Livingston s place, one of
the best of which reasons was that the latter had so
little sympathy with the people as to drive a chariot.
The force of this argument was impaired by the retort
in the Republican journals of the fact that Mr. Watson
drove a chariot likewise. Thus it was Hobson s choice
with the electors, so far as the chariot question was con
cerned. The other considerations which were urged for
and against the candidates being, in general, less im
portant, need not be mentioned. Mr. James Watson
appears to have been an enterprising politician who held
several offices in both State and nation, and once got
into the Senate of the United States, where he sat from
December, 1798, until March, 1800.
The commanding position in which Mr. Livingston
stood before the public at this period is illustrated by
the remarks of a distinguished French traveller, who,
describing what he saw at New York, named, under
the head of " personages who deserve particular men
tion," but three men, Hamilton, Burr, and Edward
Livingston, and gave to the last the most extended notice
of the three, styling him " one of the most enlightened
and most eloquent members of Congress in the party
of the opposition." *
The following extract from a letter, written in Feb
ruary, 1796, by Chancellor Livingston to his much
* Voyage dans les Etats-Unis d i797 Par La Rochefoucauld-Lian-
Ameriquc, fan en 1795, 1796, et court. Tome Septieme, page 151.
SIX YEARS IN CONGRESS. 75
younger brother Edward, shows how affectionate was
the desire of the former that the latter should not only
maintain the distinction he had gained, but that he should
earn and enjoy additions to it :
" As I naturally feel myself much interested in your
political career, I cannot but entreat you to consider
that you are at this moment making immense sacrifices
of fortune and professional reputation by remaining in
Congress. Nothing can compensate for these losses
but attaining the highest political distinction. But,
believe me, this will never be attained without the most
unwearied application, both in and out of the House.
Read everything that relates to the state of your laws,
commerce, and finances. Form and perfect your plans,
so as to bring them forward in the best shape. Forgive,
my dear brother, both my freedom and my style. I
write from my heart, not from my head. Be persuaded
that no extent of talent will avail, without a considerable
portion of industry, to make a distinguished statesman."
The Naval Department of the government, as an
offshoot of the Department of War, was established by
law in April, 1798. It was a measure of the Federalists
and the Administration. The Republicans opposed the
establishment, and Mr. Livingston spoke and voted against
it. The opposition went upon grounds of economy and
simplicity, in keeping the management of both army and
navy under one head, and the inexpediency of enlarging
the naval defences. The bill passed in the House of
Representatives by a narrow majority.
A little later in the same session, the two notorious
measures of the Government, known as the Alien and
Sedition laws, were brought forward, and passed by a
majority in the House. It is most astonishing that Mr.
Adams and his friends should not have known better than
76 LIFE OF EDWARD LIVINGSTON.
to believe it possible to establish two such acts under
our free Constitution, which they had had so large a share
in framing. The Alien bill invested the President with
power to order dangerous or suspected aliens to depart
out of the territory of the United States ; or, in case
of disobedience, to imprison and perpetually exclude from
the rights of citizenship ; or, after an order to depart,
to grant a license to remain for such time as the Presi
dent should deem proper, and at such place as he should
designate. The Sedition law made it a high misde
meanor, punishable with fine and imprisonment, to com
bine with intent to oppose any measures of the Govern
ment of the United States, or to traduce or defame
the Legislature or the President, by declarations tending
to criminate the motives of either. Both these odious
measures were passed under the spur of party disci
pline. Both excited at once the bitterest opposition of
the Republican party, and presently incurred the hearty
abomination of the country. Such experiments in legis
lation are not likely to be repeated while our form of
government lasts.
Mr. Livingston achieved national fame by the con
spicuous eloquence and vigor of his opposition to these
measures. Having been absent from his seat for some
time, and returning on the eve of the passage of the
Alien bill, he delivered, on the #lst of June, 1798? a ve
hement argument against it. The following were his
opening words :
" Mr. Speaker : I esteem it one of the most fortunate
occurrences of my life, that, after an inevitable absence
from my seat in this House, I have arrived in time to
express my dissent to the passage of this bill. It would
have been a source of eternal regret and the keenest
remorse, if any private affairs, any domestic concerns,
SIX YEARS IN CONGRESS. <ff
however interesting, had deprived me of the opportunity
I am now about to use, of stating my objections and
recording my vote against an act which I believe to
be in direct violation of the Constitution, and marked
with every characteristic of the most odious despotism."
After proceeding to prove that the bill was not only
at war with the spirit of the Constitution, but also in
plain conflict with its letter in several particulars, and
after showing how long a step towards despotism would
be made by the enactment of such a law, he predicted
a direct resistance by the people of the United States,
and declared that such resistance would be right, an
imprudent utterance which drove him, under a pressure
from the advocates of the measure, to the indefensible
doctrine that the people are themselves the rightful
judges, in the first instance, of the constitutionality of
acts of Congress. The ardor of his convictions upon
the vitally important subject under consideration here
carried him beyond the wisdom and moderation habitual
to him, even at this early age.
This entire speech well merits the attention of every
intelligent American. Its length precludes its insertion
here, and it is difficult to present extracts, as samples
of the whole performance. It was characteristic of all
Mr. Livingston s productions, to display a copious and
uniform power rather than any salient and occasional
beauties ; not irregular and brilliant flashes, but a fine
and steady light. Yet I cannot refrain from quoting
one eloquent passage, including the indiscreet sentiment
to which allusion has been made :
" But if, regardless of our duties as citizens, and our
solemn obligations as representatives ; regardless of the
rights of our constituents ; regardless of every sanction,
human and divine, we are ready to violate the Consti-
78 LIFE OF EDWARD LIVINGSTON.
tution we have sworn to defend, will the people submit
to our unauthorized acts I will the States sanction our
usurped power ? Sir, they ought not to submit ; they
would deserve the chains which these measures are for-
o
ing for them, if they did not resist. For let no man
vainly imagine that the evil is to stop here ; that a few
unprotected aliens only are to be affected by this inquis
itorial power. The same arguments which enforce those
provisions against aliens, apply with equal strength to
enacting them in the case of citizens. The citizen has
no other protection for his personal security, that I know,
against laws like this, than the humane provisions I have
cited from the Constitution You have already
been told of plots and conspiracies ; and all the frightful
images that are necessary to keep up the present system
of terror and alarm have been presented to you ; but
who are implicated in these dark hints, these mys
terious allusions ? They are our own citizens, Sir, not
aliens. If there is any necessity for the system now
proposed, it is more necessary to be enforced against
our own citizens than against strangers ; and I have no
doubt that, either in this or some other shape, this will
be attempted. I now ask, Sir, whether the people of
America are prepared for this I Whether they are willing
to part with all the means which the wisdom of their
ancestors discovered and their own caution so lately
adopted, to secure their own persons I Whether they are
willing to submit to imprisonment, or exile, whenever
suspicion, calumny, or vengeance shall mark them for
ruin ? Are they base enough to be prepared for this ?
No, Sir, they will, I repeat it, they will resist this
tyrannical system ; the people will oppose, the States will
not submit to its operations ; they ought not to acquiesce,
and I pray to God they never may.
SIX YEARS IN CONGRESS. 79
" My opinions, Sir, on this subject are explicit, and
I wish they may be known. They are, that, whenever
our laws manifestly infringe the Constitution under which
they are made, the people ought not to hesitate which
they should obey ; if we exceed our powers, we become
tyrants, and our acts have no effect. Thus, Sir, one of
the first effects of measures such as this, if they be ac
quiesced in, will be disaffection among the States, and
opposition among the people to your government ; tu
mults, violations, and a recurrence to first revolutionary
principles ; if they are submitted to, the consequences
will be worse. After such manifest violation of the
principles of our Constitution, the form will not long be
sacred ; presently every vestige of it will be lost and
swallowed up in the gulf of despotism. But should the
evil proceed no further than the execution of the present
law, what a fearful picture will our country present !
The system of espionage thus established, the country will
swarm with informers, spies, delators, and all that odious
tribe that breed in the sunshine of despotic power and
suck the blood of the unfortunate, and creep into the
bosom of sleeping innocence, only to awaken it with a
burning wound. The hours of the most unsuspecting con
fidence, the intimacies of friendship, or the recesses of
domestic retirement, afford no security ; the companion
whom you must trust, the friend in whom you must
confide, the domestic who waits in your chamber, are
all tempted to betray your imprudence and guardless
follies, to misrepresent your words, to convey them, dis
torted by calumny, to the secret tribunal where Jealousy
presides, where Fear officiates as accuser, and where sus
picion is the only evidence that is heard."
This speech produced a thrilling effect upon the pop
ular mind of the nation. It was printed upon satin,
80 LIFE OF EDWARD LIVINGSTON.
and reached all classes. The author was deluged with
petitions from the several States for a repeal of the law,
to be presented at the next session. The repeal was
refused by Congress, but both the Alien and Sedition
laws expired by their own limitation : the former two
years from its passage, the latter on the last day of Mr.
Adams s term of office.
On the 5th of July, while the Sedition Act was under
consideration in the House, Mr. Livingston moved to
reject the bill without a second reading. On this occa
sion he delivered a speech in favor of freedom for speech
and for the press, which was characterized by an orator
on the other side as bold and violent, and as calculated
to awaken, in well-regulated minds, emotions of fear and
horror. A Federalist member from Connecticut shud
dered, and felt the blood freeze in his veins, when he
contemplated the probable effects of " the liberty of
vomiting on the public floods of falsehood to everything
sacred, human and divine." " If any man," he exclaimed,
" doubts the effects of such a liberty, let me direct his
attention across the water ; it has there made slaves of
thirty millions of men." But the boldness and violence
of language thus denounced, led and settled the per
manent public opinion of the country with reference to
freedom of speech and of the press.
In January, 1798, Mr. Livingston carried through
Congress a measure for the payment of an annuity to
each of the four orphaned daughters of the Count de
Grasse, though the gratitude thus expressed by the rep
resentatives of the nation was not quite as liberal as
he desired and urged. The sum devoted to this object
was four hundred dollars to each of the ladies annually,
for five years, a thrifty acquittance of such a debt as
was thus acknowledged.
SIX YEARS IN CONGRESS. %{
III. Mr. Livingston s third election to Congress oc
curred in April, 17 ( J8, two months before he had made
his powerful and most popular demonstrations against
the Alien and Sedition bills. Had it been otherwise, no
opponent could have taken the field against him with
any chance of success. As it was, the canvass was
tame in comparison with the two preceding ones, His
majority was only 175 votes.
It was in the sixth Congress, and in December, 1799?
that John Marshall first appeared as a member of the
House, and took at once the leadership of the Govern
ment s side. In March following, he delivered the
most renowned of all his public speeches, in a debate
set on foot by Mr. Livingston. The question was on
the conduct of the President, Mr. Adams, in the case
of Thomas Nash, alias Jonathan Robbins. That person,
having committed a murder on board a British frigate
on the high seas, and having escaped to this country,
had been arrested and committed for trial under the
laws of the United States, in the Federal court for the
District of South Carolina. The British government
demanded his extradition, under the provisions of the
&7th section of Jay s treaty. He was surrendered, tried
by an English court, convicted, and executed. Mr.
Adams had officially taken an active part in the business
of the extradition, by writing to the judge of the court
in South Carolina to the effect, that, in the President s
opinion, " an offence committed on board a public ship of
war, on the high seas, is committed within the juris
diction of the ifation to whom the ship belongs," for
which reason the judge was advised and requested to
deliver up the prisoner to the agent of Great Britain,
provided only the proper evidence of his criminality
should be produced. Robbins had claimed to be an
11
82 LIFE OF EDWARD LIVINGSTON.
American citizen, and to have been impressed on board
the British vessel.
Here was matter enough for a great deal of honest
and bitter controversy. The odium which had origi
nally attached to the treaty in the minds of a portion
of the people was revived and aggravated by the circum
stance just referred to. The fury of the Republican op
position found mild expression in a series of resolutions,
offered by Mr. Livingston, declaring, in substance, that
the several questions involved in the case were matters
exclusively of judicial inquiry ; that the decision of those
questions by the President was a dangerous interference
of the Executive with judicial decisions ; and that the
compliance of the judge in this case was a sacrifice of
the constitutional independence of the judicial power, and
exposed the administration of the latter to suspicion and
reproach.
To a young Republican orator the temptation was
strong to make the most of the circumstance of Robbins s
claim of citizenship, in order to deal a severe blow upon
the popularity of the administration. But to that temp
tation Mr. Livingston did not yield. He declared his
belief that Robbins was an Irishman, and that he was
guilty of the crime with which he was charged. In his
view, by that admission he did riot at all surrender
the point of his resolutions, the design of which was to
try the naked question of the right of the Executive to
interfere in the least with the Judiciary in the exercise
of its functions in a case of extradition under a treaty,
when the subject of it is in custody. * The argument
of Mr. Marshall was largely addressed to the task of
answering specifically the several positions advanced by
Mr. Livingston. It was a gigantic vindication of the
President, and of the exclusive right of the Executive
SIX YEARS IN CONGRESS. 3
to decide such a question ; and, as an argument, fully
merited all the fame it brought to its author. It will
be found one of the most wonderful of all recorded dis
plays of the power of exhaustive analysis, terse statement,
and compact reasoning. But it is a task beyond the
power of any talents to satisfy a mind unbiased, en
lightened, and accustomed to the true definitions and
boundaries of judicial and executive functions in a free
government, that the President can properly exert an
official influence upon any judicial order whatever. Nev
ertheless, the resolutions were defeated by a vote of
35 to 61.
Only a few days after Mr. Livingston had first taken
his seat in Congress, he offered a resolution that a com
mittee be appointed " to inquire and report whether any
and what alterations should be made in the penal laws
of the United States, by substituting milder punishments
for certain crimes, for which infamous and capital pun
ishments are now inflicted." The committee was ap
pointed, and he was made its chairman. Later in the
same month, he offered a second resolution, which was
carried, requesting the President to obtain, for the
information of Congress, detailed statements respect
ing the trials and convictions which had taken place
under the existing laws. This information was not
furnished. A year afterwards, Mr. Livingston moved
for the appointment of a committee " to inquire and
report whether any and what alterations are necessary
in the penal laws of the United States, and that they
report by bill or otherwise." The motion prevailed,
and he was appointed chairman of the new commit
tee. I do not find that the latter ever made any
report, and the matter is only mentioned here for the
purpose of showing how early the general subject of
84 LIFE OF EDWARD LIVINGSTON.
the Livingston Code had engaged the attention of its
author.
Mr. Livingston was not a candidate for reelection to
the seventh Congress, and was succeeded in his seat by
the celebrated Dr. Samuel L. Mitchill. The close of
this his first congressional career was signalized by
the election of Mr. Jefferson to the Presidency of the
United States in the House of Representatives. The
electoral votes, when counted, were found to be, J3 for
Mr. Jefferson, 7 3 for Mr. Burr, 65 for Mr. Adams,
64 for Mr. Pinckney, and 1 for Mr. Jay. Thus the
election devolved, by the Constitution, on the House, and
the choice for both President and Vice-President was
reduced to Jefferson and Burr ; for, on the election of
either, in the circumstances stated, to the first office, the
second would, by the Constitution, immediately attach
to the other. Between the two the destiny of the coun
try hung through seven days and thirty-six ballotings.
There were then sixteen States. A majority of the Rep
resentatives from each State determined its vote. A ma
jority of the States was necessary to an election. The
votes of nine States were therefore required to effect
that result.
Thirty-five ballotings ended alike, showing eight States
in favor of Jefferson, six for Burr, and two equally
divided. On the thirty-sixth balloting, Jefferson was
found to have received the votes of ten States, while four
adhered to Burr and two cast blank ballots. Mr. Jef
ferson s election was thereupon declared, and Mr. Burr,
by law, became Vice-President.
This crisis, in which a few bold politicians came very
near overruling the well-known intention of a majority
of the people of the United States, and for the time
setting the fundamental principles of our government at
SIX YEARS IN CONGRESS. 85
nought, grew out of a clumsy provision in the Consti
tution. Then, as now, the vote of the people in each
State was for a set of electors of the same number as
the Representatives to which the State was entitled ; and
the electors thus chosen in all the States afterwards met,
in electoral college, to ballot for President and Vice-
President. But the provision referred to required each
member of the electoral college to ballot simply for two
persons, without indicating the office for which either
was designed. Of course, this mode of balloting would
always result in a tie between the two candidates of
the successful party for the higher and the lower office,
unless there should be an arrangement by the party in
the electoral college, by which some one at least of the
electors should cast a blank ballot, or one in favor of a
name not really in the canvass, as was done by the Fed
eralists, in this instance, by transferring a single ballot
to Mr. Jay. How such an arrangement came to be
omitted by the Republicans is matter of some mystery.
Burr and his friends had certainly anticipated such a
result ; and they had probably brought it about by some
subtle but active means which cannot now be explained.
At all events, they were on the lookout the moment
the mischance became known, and w r ere not long in
perfecting a league with the Federalist leaders in the
House of Representatives, who, when the time of the elec
tion came, made a sturdy attempt, under the leadership
of Mr. Bayard, the sole representative of Delaware,
to elevate Burr over Jefferson, as a choice between po
litical evils. The attempt was persevered in until its
success was demonstrated to be hopeless, and a choice
became imminent between a government with Jefferson
at the head and no government at all. Then, the elec
tion w r as yielded, not graciously, to Jefferson.
86 LIFE OF EDWARD LIVINGSTON.
During this contest, of which not all the details are
pertinent to my task, Mr. Jefferson steadily received
the vote of New York. This was done by a majority
of two in the delegation, six members voting for Jef
ferson and four for Burr. Of course, a tie, and a loss
of the State s vote would have been produced by the
going over from the former to the latter of a single mem
ber. A loss of the vote of New York, though it would
not on the final balloting have been fatal to Jefferson s
election, would have been likely, if occurring at an ear
lier stage of the controversy, to have that effect.* Liv
ingston was one of the six constant adherents of Jeffer
son, and thus held, in the contest, a balance of influence
which he might have wielded in the interest of Burr,
of his own State and city, w r ith whom his relations, pro
fessional, political, and personal, of many years standing,
had till then been intimate.
Under these circumstances, he appears to have been
marked by Burr as a subject for cautious temptation.
Judge Van Ness wrote to him from Albany that " it was
the sense of the Republican party in the State of New
York, that, after some trials in the House, Mr. Jefferson
should be given up for Mr. Burr." Bayard, while the
indeterminate balloting in the House was going on, ap
proached Livingston, or, to employ his own language,
took occasion to sound him, and stated that he had un
derstood the latter was the confidential friend and agent
of Mr. Burr, and was ready to cooperate at an appro
priate opportunity in his election. Livingston s answer,
according to the testimony of Bayard, subsequently given
* I find no ground for believing atives to persevere in what they did
that the requisite nine States could gravely contemplate, the holding out
have been secured for Burr in any until the 4th of March, and thus
event; but a defection of New York preventing any constitutional elec-
from Jefferson might very well have tion whatever,
influenced the Federalist Represent-
SIX YEARS IN CONGRESS. gy
on oath in a court of justice, was a very distinct but
rather dry denial of any such agency or design, leaving
on Bayard s mind an impression that he felt no zeal in
Jefferson s behalf, but that he would not give his ballot
to Burr in any event. What notice, if any, he took of
Van Ness s letter, does not appear. The secret diary of
Jefferson shows that his relations with the latter during
the struggle were of the most confidential character, and
that the attempt upon him by Burr and his satellites
did not receive sufficient encouragement to take distinct
shape.
Besides the State of New York, whose suffrage
would have been recorded for Burr if two of its Re
publican Representatives had given him their ballots,
there were four States Vermont, Maryland, Tennessee,
and Georgia either of which would have been secured
for him by a like change of a single ballot. Any three
of these five, if thus won over, would have made up the
nine States required to effect his election. What three
States so needed were those which the Machiavelian
chief and his confederates most definitely counted upon
being able to swerve about " after some trials " is not
quite clear. There is no good evidence that the hope
of gaining over any of the five was reasonably conceived.
None of them wavered visibly during the thirty-five in
decisive ballotings ; and on the thirty-sixth, the Federalists,
in despair, decided, not to lend a single voice to Jef
ferson, besides that of Mr. Huger of South Carolina,
who had from the first kept aloof from the action of his
party in the House, but to cast blank ballots instead of
those which till then had been thrown for Burr in the
equally divided and therefore neutralized votes of Ver
mont and Maryland. These two States were in this way
88 LIFE OF EDWARD LIVINGSTON.
added to those which had all the while adhered to Jef
ferson, and the struggle was over. Burr from this
moment started upon that tedious career of infamy,
whose downward course the killing of Hamilton so im
pressively precipitated.
CHAPTER VI.
OFFICES AND MISFORTUNES.
Approaching Change in Mr. Livingston s Career Death of his Wife
Appointment as Attorney of the United States, and as Mayor of New York
Variety of Functions Germ of the Livingston Code Manners and
Tastes Conduct during the Prevalence of Yellow-Fever in the City
The incurring of a Debt to the Government Circumstances of the Af
fair Conduct in that Difficulty Resignation of Offices Honors there
upon received The Purchase of Louisiana Letter from Lafayette
Departure for New Orleans.
WE come, now, to the middle period of Livingston s
life, a period of protracted trials, vicissitudes,
and storms. The manner in which he bore himself
under long accumulating misfortunes, and triumphantly
rid himself of the burden at last, is what will lend to
the narration its highest interest.
The same month in which he retired from Congress,
and from the scenes which attended the election of Jef
ferson, he sustained the first * of a series of domestic
afflictions, destined in all their circumstances to try to its
utmost the strength of his philosophy. Of this bereave
ment, caused by scarlet-fever, he afterwards made in
his Bible the following record : " On the 13th of March,
1801, it pleased Heaven to dissolve an union which for
thirteen years it had blessed with its own harmony, with
an uninterrupted felicity rarely to be met with ; formed
by mutual inclination in the spring of life, it was ce
mented by mutual esteem in its progress, and was ter-
* The first except the death of ly, at an advanced age, in July of
his mother, which occurred sudden- the preceding year.
12
90 LIFE OF EDWARD LIVINGSTON.
minated by a stroke as sudden as it was afflictive."
They had had three children, Charles Edward, Julia
Eliza Montgomery, and Lewis, born respectively in 1790,
1794, and 1798, and these all survived to him.
A few days after sustaining this blow, and while his
grief was yet in its sharpest stage, he received from
Mr. Jefferson a commission appointing him to the office
of Attorney of the United States for the District of
New York, then comprising the whole State, in place of
Richard Harrison, removed. This was an acceptable
office, because it was honorable and profitable, while its
functions were in the line of his profession, the labors
of which he had determined actively to resume.
At the same time a movement had been on foot for
several months in the Republican party in the city and
at Albany for the removal of Richard Varick from the
office of Mayor of the city of New York, and the ap
pointment of a Republican in his stead. The only dif
ficulty was to unite, upon an individual, the elements
which composed the Council of Appointment sitting at
Albany, as influenced by the Republican members of the
legislature. This was done in August following; and
Edward Livingston was then named for the place without
a dissenting voice in the council. On the 4th of the
month he was formally installed in the office.
The mayoralty of New York was then esteemed to
be, and was in fact, a post of great dignity and impor
tance. The celebrated De Witt Clinton, in order to
accept it, resigned his seat in the Senate of the United
States. Since the close of the war, the population had
grown from twenty thousand to upwards of fifty thou
sand, and the rate and prospect of increase continued.
All the municipal offices of the city were respectable.
The Mayor presided over the deliberations of the common
*%
V OP>
OFFICES AND MISFORTUNES.
/* Ql
council, and, superadded to all his executive
he was, as we have already seen, the presiding judge
of a high court of record, possessing both civil and
criminal jurisdiction. The emoluments of the place were
in the form of liberal fees and perquisites ; and a few
years incumbency, carefully managed, was equivalent to
a handsome competence.
The holding of two such offices at the same time,
the one under the Federal, the other from the State gov
ernment, which would not now be thought compatible,
excited no cavil then ; and both these appointments, being
for short terms at first, were renewed the next winter.
Party spirit had at that time acquired a good deal
of earnestness in both city and State. A public dinner
was given to Mr. Varick by the Federalist lawyers,
at which a rather warm dissatisfaction on the subject of
his removal was expressed. Toasts were drunk, twenty-
five in number, which, if read now, have a labored, ob
scure, and pedantic sound ; and their political bitterness,
though not very outspoken, is more apparent than their
pointedness.
Thus Livingston, at the age of thirty-seven, after a
distinguished as well as a smooth and happy career,
found himself still borne forward upon a tide of pros
perity, reputation, and influence. From this point the
reader will obtain more frequent as well as more distinct
impressions of the personal habits and qualities of an
extraordinary man : a marvellous industry which would
have soon destroyed any but the soundest constitution,
and which enabled him, in the midst of every-day avo
cations and cares, to accomplish a work pronounced by a
French publicist to be " without example from the hand
of any one man ; " a steady philanthropy which was
his chief incentive ; an equal aptitude for affairs, society,
92 LIFE OF EDWARD LIVINGSTON.
or study ; a peculiar simplicity of heart joined to unsur
passed intellectual acumen ; an extreme gentleness grafted
upon unconquerable energy ; and a temper after child
hood never once overset.
He did not rest for a moment in the possession of
his new dignities, but devoted his whole energy to the
duties which they imposed. We presently find him pre
siding on important capital trials, where his charges
to juries are described by the journals of the time as
extraordinarily impressive. But he made no discrimi
nation between these conspicuous functions and those
useful labors which are performed out of the public view.
He at once undertook a reformation of the rules and
practice of the court in civil actions, and soon com
menced the preparation of a volume* of reports of such
of his own and the recorder s decisions as he thought
should be generally known to the bar. This was before
any regular reporting of the judgments of either the
city or State courts had been undertaken, and when but
a single volume of reports that of Colman s Cases
had appeared.
A greater variety of functions could hardly be heaped
upon the hands of one man. The president of a court
of justice and of a deliberative body, he must appear
as an advocate in all causes of importance in his district
in which the Federal Government was interested, and,
in turn, superintend the administration of multifarious
municipal affairs, from the regulation of finance to the
assize of bread. The strides which the town was then
making towards its present metropolitan proportions are
well indicated by the fact that the city-hall, at that time
* Judicial Opinions, delivered in New York : Printed and published
the Mayors Court of the City of by D. Longworth, at the Shakspeare
Neiv York in the year 1802. Forsi- Gallery near the Theatre, 1803.
tan et haec olim meminisse juvabit.
OFFICES AND MISFORTUNES. 93
projected and commenced, though it long since ceased
to be adequate to the purposes of its construction, was
at first magnificent in view of its required uses, as well
as by the. fact that the dark-colored stone employed in
the construction of its rear or northern wall was used
instead of the marble of the three other sides, for the
reason that that wall would be out of sight of all the
world. The corner-stone was laid by the Mayor with
appropriate ceremonies, in 1 803.
The Mayor was required, by the custom of the period,
to devote to the public and private entertainment of dis
tinguished strangers a degree of attention which the
growth of the city and of the world s travel afterwards
rendered impossible. For this duty Mr. Livingston was
eminently fitted, and he discharged it with conscientious
ness and pleasure. His residence was at No. 1 Broad
way, the windows overlooking the Battery. The large
trees upon this common were planted during his admin
istration and under his direction.
An ordinary man would have found enough to occupy
all his faculties and desires in the labors, the eclat, and
the profits of these offices. But Livingston, whose mind,
as we have seen, at school and college had strayed in
fields of poetry and philosophy ; who during the early
and successful practice of his profession had found leisure
for the prosecution of varied liberal studies ; and who
as a legislator had planned and laboriously matured com
prehensive measures of mere humanity, now, in the
midst and whirl of these occupations, conceived and first
publicly broached an original project which appears to
have been the germ of that great scheme of philan
thropy to the perfecting of which he was yet to devote
his best energies for many years. In a communication
to the Mechanic Society he proposed that an organized
94 LIFE OF EDWARD LIVINGSTON.
attempt should be made by the society, jointly with the
city government, to found an establishment in which to
assure the employment of, first, strangers during the
first month after their arrival ; secondly, citizens, who,
from the effects of sickness or casualty, have lost their
usual employment ; thirdly, widows and orphans, inca
pable of labor ; and, fourthly, discharged or pardoned
convicts from the state-prison. This experiment would
have required a capital and an organization which he
thought the city government not prepared to undertake
alone, but which he believed practicable as a joint un
dertaking of the government and the society which he
addressed. In this communication there are some touches
of the earnestness and eloquence with which he was af
terwards wont to write upon these and kindred topics. He
dwelt upon some of the results which he hoped would
flow from the adoption of the measure ; as the suppres
sion of mendicity, the prevention of those crimes which
arise from idleness and want, the restoration of unfortu
nate citizens sunk by misfortune below their former sta
tion in society, and the accomplishment of reformation
along with the punishment of criminals. " It is," said
he, in this paper, referring to the penitentiary system,
" a great, I had almost said a godlike experiment, worthy
of the free country in which it is made, honorable to
the men who planned, and highly creditable to those who
conduct it. Its progress is regarded with an interest
running into anxiety, by the friends of humanity in every
quarter of the world ; and its failure, from whatever cause,
will check the spirit of improvement that suggested it,
and restore the ancient bloody code with all its horrors.
But it must be evident that nothing will tend so much
to defeat the principal object of reformation, and at the
same time endanger the security of the city in which
OFFICES AND MISFORTUNES. 95
it is placed, as the situation in which those who have un
dergone the sentence of the law now stand at the time
of their discharge. The odium justly attached to the
crime is continued to the culprit after he has suffered its
penalty ; he is restored to society, hut prejudice repels
him from its hosom ; he has acquired the skill and
has the inclination to provide honestly for his support.
Years of penitence and labor have wiped away his crime,
and given him habits of industry, and skill to direct them.
But no means are provided for their exertion. He has
no capital of his own, and that of others will not
be intrusted to him ; he is not permitted to labor ; he
dares not beg ; and he is forced for subsistence to plunge
anew into the same crimes, to suffer the same punish
ment he has just undergone, or, perhaps, with more cau
tion and address, to escape it. Thus the institution, in
stead of diminishing, may increase the number of offences.
This partial defect, so easily remedied, may ruin the
system, and put a stop to the fairest experiment ever
made in favor of humanity."
The Mayor here unfolded his scheme, of which the
leading features were the opening of public workshops
for the several branches of mechanical art, in which any
tradesman wanting employment would be sure to get it,
in his proper trade, each shop to be managed under
the direction of a committee appointed by the Mechanic
Society ; a general office for the reception of applica
tions by those destitute of employment, as well as by
those requiring workmen ; a large workroom, annexed to
the almshouse, in which women and children might be
employed in labors suited to their strength, where food
might be prepared for them at a cheap rate, and where
the children might receive the advantage of some edu
cation in the school belonging to that establishment ; a
96 LIFE OF EDWARD LIVINGSTON.
system of regulations for the purchase of raw material,
sale of manufactured goods, and prices of labor ; and the
furnishing of the necessary capital by the corporation of
the city, for the due application of which, but not for
inevitable loss, the committees should be responsible.
" This," continued the Mayor, " is a sketch of the
plan which presented itself to my mind as one that would
probably effect the objects I have detailed. Many parts
of it may perhaps be changed for the better, and other
valuable ideas suggested, in case you should think proper
to appoint a committee to confer with me on the subject.
A general establishment under the direction of the cor
poration would seem to present many advantages over
the one now proposed. But, besides the difficulty of
raising a fund sufficient for its support, it would have
the disadvantage of creating an interest which might
sometimes be supposed injurious to the mechanic who
works only on his own small capital ; whereas the be
ing under the superintendence of the Mechanic Society
could never give rise to any such prejudice. Having
mentioned the cooperation of the common council of the
city, I must not be understood as speaking their senti
ments, or in any wise pledging them to countenance the
plan. It has not yet been mentioned at the board, and
will receive no further encouragement from them than
on discussion its merits shall be found to warrant."*
* We have seen that Mr. Liv- in the French of Dumont, in 1802.
ingston had in Congress, some years This fact he acknowledged in a let-
before this period, made earnest but ter to Bentham of August 10, 1829.
ineffectual efforts to meliorate a por- Vide Bentham s Works, edited by
tion of the criminal laws of the Bowring, vol. xi. page 23. In a
United States. But the reflection subsequent letter, which appears in
which was to lead eventually to the the same collection, Livingston wrote
preparation of an original, compre- to Bentham, "Although strongly
hensive, and complete system of pe- impressed with the defects of our
nal legislation, first received impulse actual system of penal law, yet the
and shape from the perusal of those perusal of your works first gave meth-
of Bentham s works which appeared, od to my ideas, and taught me to
OFFICES AND MISFORTUNES. 97
The response of the society was a respectful and elab
orate refusal to entertain the plan. Circumstances soon
occurred which prevented the author from seeking an
other method of bringing it before the people of his native
State ; and its gradual growth in his mind and under
his hand to a complete proposed system, comprehending
a reconstruction of the entire framework and details of
criminal legislation, was reserved for a later period and
another place.
Would the reader suppose that the man who performed
from day to day these varied practical labors, and who
pursued at the same time such researches and contem
plations as are here indicated, could also find much of
either leisure or inclination for domestic intercourse, so
ciety, or amusement ] The capacity and taste of Liv
ingston were sufficient for all these. He could tempo
rarily lay aside the gravest cares and the deepest studies
with a grace and a relish, in the very spirit of the Ho-
ratian recommendation,
" Misce stultitiam consiliis brevem."
Among his intimate acquaintances he never let pass an
opportunity for producing a pun ; and if a good one did
not come into his mind, an indifferent one would serve
the purpose of his gleefulness and gayety. The late
Honorable Charles J. Ingersoll, during the last month of
his life, gave me from his own memory, after a lapse of
sixty years, this anecdote. On a visit at New York
during the period referred to, he escorted the celebrated
Theodosia Burr to see a frigate then lying in the harbor,
upon the invitation and in the company of the Mayor.
On the way, the latter, in the liveliest manner, exclaimed
consider legislation as a science gov- powers, called forth only on particu-
erned by certain principles applica- lar occasions, without relation to or
ble to all its different branches, in- connection with each other." Vide
stead of an occasional exercise of its page 5 1 of the same volume.
13
98 LIFE OF EDWARD LIVINGSTON.
to the young lady, " Now, Theodosia, you must bring
none of your sparks on board. They have a magazine
there, and we should all be blown up." He seemed al
ways ready for a hearty laugh, and was not fastidious about
the quality of the wit which should provoke it. At his
own table, or among his familiar friends, his gayety was
perennial ; and a stranger seeing him in these circum
stances would have supposed that the usual topics of
conversation common to the young and the old of both
sexes were those in which he felt the most lively interest.
He was himself fond of some kinds of amusement, and
enjoyed sympathetically the amusements of all. One of
his nieces, Mrs. L , of Rhinebeck, has lately told me,
what she remembers well, that during the same period,
when she was about sixteen years of age and spending
a winter with her uncle, she once said in his presence,
while talking of the play which she had seen the evening
before, "Oh, I wish I could go to the theatre every
night." " Well, my dear," said the Mayor, " you shall,
you shall." And he actually went with her to see every
representation, then on each alternate night, for two or
three weeks, until she voluntarily begged that the pleasure
might be intermitted.
His daily official labors were despatched with aston
ishing facility, and he still found some leisure for reading
general literature, including poems, and even romances,
in which he delighted. In short, the capacity and the
sympathy of this able, learned, philosophic, and busy
man, seemed only confined to the region of human tastes
and interests. Not Terence nor any other, with more
truth, could say,
" Homo sum ; humani nihil a me alienum puto."
Such was the active but even tenor of Livingston s
life, from the time when he undertook these offices until
OFFICES AND MISFORTUNES. 99
the summer of 1803. New York has been visited sev
eral times by that fearful pestilence, the yellow-fever,
the rarity of the dispensation always heightening- its
terror, and one of the most memorable of these occa
sions was in that year. The first appearance of the
scourge was about the 20th of July, and its presence
lasted till the end of October. This event elicited a
display, on the part of the Mayor, in the regular dis
charge of his functions, of more lofty qualities than a
lifetime of ordinary official duty could have called into
exercise. The public alarm was great and universal.
As a rule, all who could possibly leave the city for any
place of safety hastened to do so. As usual, however,
there were many instances of selfishness and cowardice on
the one hand, and on the other many examples of heroic
philanthropy. The reader will not need a minute picture
of those dismal scenes of which the city was then the
theatre, 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 po
sition of the Mayor, or to appreciate his conduct. He
regarded himself bound, as by a sacred contract, to re
main steadfastly at his post, and calmly face the public
enemy, without the slightest attention to what might be
the consequences upon himself.
He so remained, but did not limit his exertions to a
frigid performance of his official duty. On the contrary,
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
made every sick person in some sense his patient, and
sought some share in the grief or joy of the families of
victims or convalescents. He animated the zeal of his
100 LIFE OF EDWARD LIVINGSTON.
colleagues and subordinates in the government, stimulated
the fidelity of nurses, physicians, and priests, and even
went about the city at night, to see for himself if the
watchmen were thorough in their duty. In a word, it
was the part of a Howard, in the person of a conscien
tious chief magistrate, that he enacted in this dreadfully
real drama.
For some time, and until there was a marked abate
ment in the prevailing fatality of the epidemic, he en
joyed complete health. Then he was himself taken down
by the contagion. But his good constitution, aided by
a sanguine will and the particular care which his case
received, secured him a rapid recovery after a rather vio
lent but short crisis. He was now the object of extraor
dinary popular gratitude and regard. When his physi
cians called for Madeira to be administered to him, not
a bottle of that or any other kind of wine was to be
found in his cellar. He had himself prescribed every
drop for others. As soon as the fact was known, the
best wines were sent to his house from every direction.
A crowd thronged the street near his door, to obtain the
latest news of his condition ; and young people vied with
each other for the privilege of watching by his bed.
An ambitious man could hardly desire a better van
tage than that which Livingston now seemed to occupy.
He was but thirty-nine years of age ; yet he had proved
his great talents as an advocate, as a legislator, as an
administrator of public affairs, and as a judge. His
civic virtue had just been put to the hardest test, and
found reliable. The dangers of the trial were past, and
these high qualities were widely appreciated both by
public men and by the people. Surely, nothing was
here wanting to the appropriate description of a rising
man.
OFFICES AND MISFORTUNES.
So far, his course had been one of uniform prosperity
and uninterrupted success. His happiness had been un
clouded, except by the afflictions which have been men
tioned and one other. His eldest son, Charles Edward,
had died in November, 1802, at the age of twelve years.
He was a youth of a feeble constitution, but of the
sweetest disposition, and of a precocious native piety
and strong sense. The father mourned him sincerely,
but a long expectation of the bereavement materially
softened its effects.
I have now to record the principal misfortune of Liv
ingston s life, a misfortune which, in fact, served to
divide his life into two distinct careers, bringing that
over which we have glanced to an abrupt close, and
leading to another, destined, in its labors, achievements,
and fame, to eclipse the first.
At that time, such moneys belonging to the United
States as were collected by legal proceedings, instead of
being paid directly to agents of the treasury, as is now
done, were received by the attorneys, and accounted for
to the government in the periodical settlement of their
accounts for services. The principal sums so received
by the office at New York, while it was held by Liv
ingston, were on the collection of custom-house bonds,
small in amounts but sometimes large in number, and
usually paid, if at all, without litigation. While he had
so many irons in the fire, he could pay but little attention
to this part of the business, and he had no taste for
personally managing such affairs. From a certain ne
cessity, therefore, as well as from inclination, he left
these matters for the most part in the hands of his subor
dinates. But this was somewhat too laxly done, a kind
of error to which more than to any other his large and
easy nature exposed him. The result which the more
LIFE OF EDWARD LIVINGSTON.
exact attention of an inferior man would have prevented,
happened. His too easy confidence was abused ; and
when, early in August, while the yellow-fever was at its
height in the city, his attention was called by the gov
ernment to the state of his accounts, it was apparent
that, without funds in his possession, he was indebted
to the United States in a considerable amount.
The principal act, the act of another, which placed him
in this unlooked-for position, was a most cruel injury.
His proper income was large, and although his habit in
both spending and giving was free, and perhaps careless,
his personal tastes were all simple, and none of them
expensive. Though he was obliged to entertain much,
as we have seen, it was done without display or profu
sion.
Still, it is plain, I think, that, if he had possessed
common skill in the management of pecuniary affairs,
and had exercised ordinary care in watching the funds
for which he was responsible, this calamity might have
been avoided. Here was the single defect in his capacity,
the one cdnspicuous weakness of his character. His
versatility, which was sufficient for almost any other busi
ness, public or private, was inadequate to book-keeping
and finance. He did not love money, and could not
comprehend its real value as most men readily do, nor
interest himself in the process of counting or of slowly
accumulating it. The whole following course of this
narrative will, I believe, verify these observations, and
show that one who, by a happy union of the sterner and
the milder virtues, came nearer to such perfection of
character as is possible to our nature than is often per
mitted, was yet obliged to suffer a rigorous and endur
ing penalty for one failing from which even the sordid
are very commonly exempt.
OFFICES AND MISFORTUNES.
Mr. Livingston seldom in after-life made any allusion
to the particulars of this unhappy affair. The most ex
plicit statement that, as far as I can find, ever came from
him on the subject, was in a pamphlet which, five years
later, he addressed to the people of the United States, in
the course of a public controversy with the President, Mr.
Jefferson, of which an account will be given hereafter in
these pages, a controversy wherein he was foiled in an
endeavor to realize speedily the means of paying his debt.
The statement to which I refer occurs in a passage explan
atory of his reasons for addressing the public, and is as
follows :
" It is time that I should speak. Silence now would be
cruelty to my children, injustice to my creditors, treachery
to my fame. The consciousness of a serious imprudence,
which created the debt I owe the public, I confess it with
humility and regret, has rendered me perhaps too desir
ous of avoiding public observation, an imprudence which,
if nothing can excuse, may at least be accounted for by
the confidence I placed in an agent, who received and ap
propriated a very large proportion of the sum, and the
moral certainty I had of being able to answer any call for
the residue whenever it should be made. Perhaps, too, it
may be atoned for in some degree by the mortification of
exile, by my constant and laborious exertions to satisfy the
claims of justice, by the keen disappointment attending
this deadly blow to the hopes I had encouraged of pour
ing into the public treasury the fruits of my labor, and
above all by the humiliation of this public avowal."
The agent here spoken of was a confidential clerk, a
Frenchman by birth, whose name I could give if it would
serve any useful purpose. He is said to have devoted
a considerable portion of the stolen money to riotous liv
ing. I have conversed with those who remembered his
104 LIFE OF EDWARD LIVINGSTON.
person distinctly, as well as the notorious circumstance
of his delinquency. Of his history or fate I could learn
nothing further.
In this unexpected trouble the conduct of Livingston
was prompt, and in all respects characteristic. Being sat
isfied of his liability for an amount which he could not
then discharge, he wasted no time in attempts to parry the
disaster, or to divide the responsibility with the real but
irresponsible delinquent. Without waiting even for an
adjustment of his accounts, he voluntarily confessed judg
ment in favor of the United States for $100,000, in order
to cover the amount which the adjustment should show
to be the real balance against him, afterwards fixed at
$43,666.21. At the same time, he conveyed all his
property to a trustee for sale, and an application of the
proceeds to the payment of his debt. The property con
veyed consisted of real estate, which, though not very
marketable, he valued at a sum sufficient for the security
of the government. And he immediately resigned both
his offices.
This was done while the pestilence was raging in the
city. The resignation of the mayoralty was accompanied
by an offer to continue to discharge the duties of the office
until the subsidence of the epidemic. The Governor sent
him the following note, tacitly postponing to act upon his
resignation, and accepting his offer :
" To the Hon. EDWARD LIVINGSTON, Esq.,")
Mayor of the City of New York. j
"Albany, apth August, 1803.
" DEAR SIR : I have the honor of receiving your letter
of the 19th. I sincerely regret, as well from considera
tions of a personal as of a public nature, the cause which
has induced you to offer a resignation of the highly impor-
OFFICES AND MISFORTUNES.
taut office you hold, and which you are so eminently
qualified to fill. My absence from home has prevented
me from thanking you at an earlier day for your obliging
favor of the 19th inst.
" I am, with great esteem and respect,
" Your most obedient servant,
" GEORGE CLINTON."
A different course, including his retention of the office
of Mayor, would seem to have been quite practicable.
Two months intervened between the offer of his resigna
tion and its acceptance by the Governor and Council of
Appointment, when finally De Witt Clinton was selected
to succeed him. Efforts were made during the interval
by his friends, including some members of the Council,
to persuade him to reconsider his determination. And
when it was known that his mind was fixed in this, he
received from all sides a shower of expressions, public
and private, of regret and sympathy which must have
proved truly soothing. The parting address which he
received from the common council of the city contains
such unusual traces of sincerity and real feeling that I
transcribe it here as follows :
" Sir : We should merit the reproaches of our fellow-
citizens, and fail in duty to ourselves, if we should pass in
silence the affecting moment which terminates your ad
ministration as first magistrate of this city ; we unite with
the utmost cordiality in that applause which the public
voice hath so justly bestowed on your conduct in execution
of the office of mayor, on the learning and discernment
displayed in your judicial decisions, your vigilance, your
activity, and zeal as an executive magistrate.
" Having been connected with you in the discharge of
14
106 LIFE OF EDWARD LIVINGSTON.
the greater part of those duties, we cannot too warmly
acknowledge the uniform politeness and courtesy of your
manners. Inflexible in the preservation of order and in
the execution of the laws, yet unbiassed by personal feel
ing or party prejudice, you have invariably exhibited dig
nity and firmness tempered by complacency; even when
differing from you in opinion, we have always had occa
sion to admire your rigid impartiality and the indepen
dence of your sentiments.
" This assemblage of qualities so rarely combined
would suffice to command our highest respect and esteem ;
but it was reserved for a period of desolating calamity to
display the extent of your philanthropy, and your disin
terested devotion to the public welfare. During the
scenes of affliction and dismay with which it hath lately
pleased God to visit our city, we beheld with admiration,
and with the most grateful emotions, the unremitted zeal
with which you sought out and relieved distress, and the
alacrity with which you sacrificed your personal safety and
comfort to that of the suffering poor ; regardless of danger
and toil, and disdaining all cold examination of the mere
limits of official duty, when humanity called, you obeyed
only the impulse of your generous heart. Thus, Sir, you
have erected in the breasts of the virtuous a monument of
gratitude which calumny cannot sully nor time deface.
" The anxiety and alarm which pervaded all ranks of
citizens during the dangerous illness which you contracted
in administering to them relief, pronounced, in language
which flatterers cannot imitate nor envy distort, the ardor
and sincerity of their affection ; and we join with them
in fervent acknowledgments to the supreme and benefi
cent Disposer of events, who hath graciously spared your
life and restored you to health.
" We must indeed be destitute of the feelings of men,
OFFICES AND MISFORTUNES.
if we could witness, without regret, the period which
dissolves a connection endeared by so many ties. We
look in vain for consolation to the future. Yet you have
so marked the path of duty that inferior abilities, if
guided by intentions as pure, may follow in the steps
traced by your wisdom, and for a time preserve the im
pulse which your energy hath produced. While we
cherish this hope, the memory of your example will
direct our conduct and animate our zeal in the discharge
of our respective functions.
" Be assured, Sir, that our attachment to your person
and gratitude for your services will endure with the
recollection of your virtues ; and that you bear with
you our lasting regret and esteem, and our prayers for
your prosperity and happiness.
" JOHN OOTHOUT,
" PHILIP BRASHER,
" JOSHUA BARKER,
" Committee of the Common Council."
But, whatever comfort he might find in the homage
of friends or in the popular sympathy, that consideration
could not for a moment relieve him from a conscious
ness of the new burden which was destined to continue,
contrary to his sanguine hopes, alternately to stimulate
his exertions, to oppress his spirits, and to perfect his
fortitude for many years ; nor did it for a moment divert
his mind from a plan for the future, which he deliber
ately but swiftly formed.
In April of the same year, 1803, Louisiana, or the
province of Orleans, comprising the present States of
Louisiana, Arkansas, Missouri, Iowa, Minnesota, (except
the corner lying northeast of the Mississippi,) Nebraska,
and Kansas, and the Indian Territory, was purchased
108 LIFE OF EDWARD LIVINGSTON.
by the United States from France. Chancellor Living
ston, the revered elder brother of Edward, had been
from the beginning of Jefferson s administration the
Minister Plenipotentiary of our government to France ;
and the success of this negotiation, at the particular time
when it was accomplished, was the result of his diplo
macy, which had been bold, skilful, and indefatigable.
Mr. Monroe arrived in France with extraordinary powers
on this subject, but a few days before the treaty was
concluded, and, during those days, assisted in that part
of the negotiation which related to fixing the price of
the country to be ceded, Napoleon being represented
by Marbois, afterwards the candid historian of the treaty ;
but the whole merit of successfully bringing the matter
to this point, at the right moment, was that of the
minister. From the latter Edward had received very
early knowledge of the subject, strongly exciting his
interest in it. In June, Lafayette had written to him,
" Bernadotte is returned from Rochelle, where he was
to embark, and his mission I consider as happily ended
by the blessed arrangement for Louisiana. With all
my heart I rejoice with you on this grand negotiation,
which, both as a citizen and a brother, must be not less
pleasing to you than it is to me." *
* Bernadotte had been charged votre frere et les papiers publics vous
by Napoleon with an errand to our auront appris, Monsieur, le mal-
government, and Lafayette had writ- heureux accident que M. de La-
ten to bespeak a good reception for fayette a eprouve. Je suis bien
him from Livingston. Between the sure que votre amitie y aura pris
last two there was a regular inter- part, et que ce sentiment est par-
change of news of every event of tage par toute votre excellente fa-
importance to either. A few months mille. Nous avons eu la douleur
earlier than the date of the above- de voir ce cher malade livre k de
mentioned letter, while Lafayette cruelles souffrances ; il doit encore
was confined with a fractured limb, subir six semaines d une gene dou-
Madame Lafayette wrote the follow- leureuse, et presqu insupportable,
ing to Livingston : mais graces k 1 invention d une nou-
velle machine cette fracture du col
"Paris, 10 ventose, i er Mars, 1803. <ju fe mur q u on regardait autrefois
** La correspondance de Monsieur comme incurable, sera completement
OFFICES AND MISFORTUNES.
When the Mayor received this letter, he little dreamed
that his own interest in the " hlessed arrangement " would
soon he something more than that of " a citizen and a
brother." The hlow destructive of his fortune and threat
ening his complete ruin shortly afterwards fell. Then
the prospect suddenly opening to New Orleans as a com
mercial city, and to Louisiana as a mother of great States,
suggested to him the thought that the new territory
where the French language, with which he was familiar,
was the one chiefly spoken, and where the civil law, whose
principles he had mastered and admired, was the basis
of jurisprudence might be his best field for the purpose
with which he burned, of quickly regaining his indepen
dence. He felt sure that he could in time effect his de
liverance by professional exertions at New York ; but,
there the process would be too slow for his patience,
while there existed a reasonable chance of a more speedy
rescue elsewhere.
He now had need of all his philosophy. He was
considerably past the period of life when usually, if ever,
a man undertakes for the first time such an adventure,
guerie. Son courage et 1 egalite de Toute sa famille s y unit bien cor-
sa Constance au milieu de ces dif- dialement. Agreez en particulier
ferens supplices ont soutenu, et sou- 1 hommage de Tattachement que
tiennent encore nos forcs, et sont mon fils vous a voue ; il m est doux
regarded par les gens de 1 art comme de vous rdpeter ici combien nous
un moyen de gudrison. C est au fumes touches pendant notre cap-
moins un motif d esperance que sa tivite des honorables et sensibles
sante ne restera pas alteree des suites temoignages d interet que vous lui
de ses souffrances. C est dans cette donnates, et combien nous sentons
situation que M. de Lafayette vient le prix d un ami tel que vous. Je
d apprendre vos bienveillantes inten- ne vous parle pas de Taimable par-
tions son dgard et les nouvelles tie de votre famille qui est ici,
obligations que vous voulez bien parceque vous recevrez de leurs
ajouter h, celles que nous vous avions nouvelles par la meme occasion, et
dejk. II en est pendtre de recon- je me borne k vous offrir 1 expression
naissance, et comme la necessite de de I attachement et de la haute con-
rester couche sur le dos, sans aucun sideration avec lesquels j ai 1 hon-
mouvement, 1 empeche de pouvoir neur d etre votre ties humble et
ecrire, il me charge de vous expri- obdissante servante,
mer tous les sentimens de sa grati- NOAILLES LAFAYETTE."
tude et ceux de sa tendre amitie.
HO LIFE OF EDWARD LIVINGSTON.
and to this one all his habits and associations, his tastes,
and his affections, opposed themselves. It was to quit the
scene of his long 1 prosperity and happiness, his family,
his friends, and the fresh graves of his wife and eldest
son ; while the comfort and safety of his two remaining
children, now nine and five years old, the objects of his
tenderest feelings, would require them to be left behind
for years. Nevertheless, he resolved upon the enter
prise, and, having made the resolution, did not lag in
its execution. He at once arranged his affairs, procured
all practicable means of extensive introduction to Loui-
sianians, and leaving his children, from whom he had
never yet been separated, in the care of his brother,
John R. Livingston, whose wife was Eliza McEvers,
the sister of their mother, he embarked, during the last
week of December, 1803, within two months after re
tiring from the mayoralty, as a passenger on board a
vessel bound to New Orleans. All the money and pe
cuniary resources which he had reserved out of his
property and now carried, consisted of about one hundred
dollars in gold, and a letter of credit for one thousand
dollars more.
CHAPTER VII.
EMIGRATION TO NEW ORLEANS.
Voyage, and Arrival at New Orleans The City and its Inhabitants in
1804 Mr. Livingston s Exertions and Success at the Bar His Home
sickness His Professional Character and Public Spirit His Code of
Procedure for Louisiana A Confusion of Tongues in the Courts Elo
quence of Livingston before a Masonic Lodge His Method as an Advo
cate His Supremacy at the Bar Note from Mazureau Mr. Living
ston s Social Traits His Taste for Mechanical Invention His Second
Marriage Prospects of Pecuniary Success Obstacles Calumnious
Attack upon Mr. Livingston by General Wilkinson.
I ^HERE is a brief and fragmentary journal of this
-* voyage still existing, in Mr. Livingston s hand
writing, from the reading of which a stranger might
infer that the distinctive faculties and tastes of the writer
were observant rather than reflective, so lively an interest
it shows in all he saw or could glean from the conver
sation of the taciturn master of the vessel. In this
simple and natural record there is not a trace of sadness
or regret, except the trivial disappointment which he felt
on being prevented by the state of the winds from land
ing at the island of Abaco, before passing which he
had enjoyed what he calls " a delightful anticipation of
the pleasure of running over its surface, examining the
trees, plants, and animals of a new climate, getting rid
of the confinement of a cabin, and enjoying for a few
hours the pleasure of fishing and shooting, both of which
we are promised in great perfection."
The ship reached New Orleans, after a passage of six
and a half weeks, on the 7th of February, 1804. The
city then occupied the small rectangular space bounded
LIFE OF EDWARD LIVINGSTON.
by the river, and by Canal, Rampart, and Esplanade
Streets, with a fort, built by the Spanish government,
at each of the four principal corners.
The population of the city was, about the same time,
ascertained to be 8056, including 1 1335 free persons of
color and QJJS slaves, a number that was soon
doubled and trebled. The citizens were, for the most
part, Frenchmen and Spaniards, who had not seen France
or Spain. These Creoles had some uniform physical
traits, the growth of their adopted climate, distin
guishing them from their ancestral races. They had
more beauty and less hardiness than their European
cousins ; and analogous to and as distinctly marked as
these outward peculiarities were certain of their qualities
of mind and character. They were social, gay, and
refined, but not ambitious, industrious, or enterprising.
Those of French origin were the preponderant class, and
French was the prevailing language. A few were edu
cated to write and pronounce with a reasonable con
formity to the Academy s standard ; but that high au
thority was not in general well observed by these remote
provincials, and nowhere else on earth could the Parisian
ear take in sounds so shocking as those which formed
the patois of the negroes.
The Creoles had taste for the art of good and elegant
living, but had never been stirred, like the peoples of
most countries, by the high emotions of patriotism.
They had quietly submitted to be bought and sold and
ceded, as a country, at the convenience or pleasure of
their foreign masters. They had grumbled a little, but
had not resisted, on being handed over to Spain ; and
when the American flag was hoisted, in token of the
transfer of Louisiana to the United States, the new ban
ner was greeted with huzzas only by older citizens of
EMIGRATION TO NEW ORLEANS.
the great republic who were present, while the Creoles
looked on with an air of well-bred indifference. This
was but a dozen years before the same people, aided by
the heterogeneous numbers in the mean time added to
them, defended their homes and the stars and stripes
so sternly under Jackson. A rapid Americanization !
The Anglo-Saxon invader on that occasion met with an
Anglo-Saxon resistance from a community made up of
dissimilar races, speaking different languages, but all
leavened with the spirit and courage of its newest comers.
Livingston wasted no time, before taking the most
direct and energetic steps in order to realize the purpose
of his emigration. He made immediate use of his in
troductions, his reputation, and his address, received
a prompt and hearty welcome from the community, and
occupied at once a foremost position at the bar of his
adopted city. He appeared as counsel in six causes in
April ; and at the term of the Governor s Court, com
mencing on the 9th of May, in twenty-nine cases of very
miscellaneous character.
He now devoted himself wholly to business, and sel
dom left his chambers before evening, except to go into
court. As a single object had taken him to Louisiana,
that object alone kept him there and directed all his
energy. In the evening he walked, or visited the families
of his new acquaintances. To his sister, Mrs. Garretson,
he wrote, May #7th :
" My profession and other circumstances have given
me a very extensive acquaintance in the province ; and
the impressions I have received are very favorable to the
character of the inhabitants. They are, in general, hos
pitable, honest, and polite, without much education, but
with excellent natural abilities, and, in short, people with
whom a man who had nothing to regret, might pass
15
114, LIFE OF EDWARD LIVINGSTON.
his life as happily as can be expected in any part of this
uncertain world It now seems decided that I
must be separated from all the friends of my early life
for an uncertain length of time ; from some of them
most probably forever. This is an idea I did not wish
to entertain ; but circumstances have forced me to con
template it, until I have become enabled to regard it,
if not with composure and tranquillity, at least with the
resignation arising from necessity. The labors of a great
portion, if not the whole of my life are now pledged
to others, for I much fear that the losses on selling real
estate will leave a large deficiency in the fund appropri
ated for my debts. I must make this up, and as I have
a better prospect of effecting it here than at New York,
I am in justice bound to remain. The separation from
my children is the hardest trial ; but I cannot, without
the greatest injustice to Julia, take her from the truly
maternal protector she has found ; and I must try the
effects of the summer climate before I will indulge myself
with the society of my little Lewis, whose education I
an myself direct."
The separation from his children, which could not be
prudently avoided, was, indeed, the most trying circuit-
stance of his situation. Julia, a child of rare beauty
and most interesting mind and character, could only con
verse with her father at a distance of two thousand miles,
and fortune removed the " little Lewis " to more than
double that long distance. His aunt, the wife of General
Armstrong, on the appointment of the latter as Minister
to France in 1804, took the boy with them to Paris, where
he remained several years. The father wrote briefly but
sadly of his " poor boy s departure," and declared that
one of the worst evils of his exile was that he could
not see the daily unfolding of a mind like Julia s.
EMIGRATION TO NEW ORLEANS. JJ5
He might have been sure of receiving a larger income
in ready money, by indulging his inclination and remain
ing at New York. The advantage which he, with good
reason, expected to realize at New Orleans, was a fa
cility of acquiring, in exchange for his services and in
lieu of fees, property of greater prospective than present
value, and thus investing his earnings in a mode assuring
their rapid accumulation. In this he was not mistaken.
Ready money in large sums was not then ordinarily to
be had at New Orleans for the services of an advocate,
hut liberal payments in lands were willingly made. In
this way, he soon acquired the title to real estate which
promised well to become a grand fortune within a few
years. One of the earliest of these acquisitions was a
property, on the shore of the Mississippi, adjacent to
the city, called the Batture Ste. Marie, which alone
but for an unlooked-for and most untoward, as well as
unjust and illegal opposition, which he was destined to
meet at the hands of his former friend, the President of
the United States, whose election, when trembling in the
balance, as we have seen, his vote and steady conduct had
helped to decide, an opposition yielded in aid of local
jealousies and temporary prejudice would have made
real, at an early day, his dream of independence. This
opposition gave rise to a long and bitter controversy, to
be hereafter detailed, a controversy most interesting in
itself, and one which brought into full play the genius
and the character of Livingston.
One would hardly expect a man so circumstanced,
having so definite an object before him, and hoping
to gain it speedily by professional exertions alone, and
especially a man so qualified to profit by accurate and
profound knowledge of all the intricacies of the system
of English legal practice, to give himself much concern
LIFE OF EDWARD LIVINGSTON.
to exclude that system from Louisiana, or in favor of any
project for a radical change and simplification of pro
ceedings at law, to enure only to the advantage of the
community which he intended as soon as should be possi
ble to leave. But Livingston was one of those lawyers
a class never anywhere numerous enough, I am afraid
who feel that they are a responsible part of the court in
which they practise, who believe their vocation to be to
assist in the administration of justice, and who devote
their exertions primarily to that duty, and then to the
interests of their clients.
In the November following his arrival at New Orleans
he evinced his habitual subordination of private interest
to public good in a memorable manner. The recent
cession of Louisiana, which had brought the territory un
der the Constitution of the United States, gave rise to
a grave question in the courts, whether the clause in that
instrument providing for trial by jury, and requiring the
reexamination, in the courts of the United States, of any
fact so tried to be according to the rules of the common
law, had not, at one stroke, imposed upon Louisiana the
whole system of English legal practice, unknown and
repugnant as it was to a vast majority of her inhabitants.
If this question had been decided in the affirmative, of
course the lawyers who had emigrated thither from
common-law States would have brought their peculiar
knowledge to an excellent market ; and not one of them
was equally qualified with Livingston to make much of
such an advantage. The bar arrayed itself into two
parties upon this question, and a cause was made up ex
pressly to obtain a full discussion and judicial settlement
of the point. Mr. Livingston was selected as the lead
ing champion of those who contended, that, although the
Federal Constitution had brought in the trial by jury,
EMIGRATION TO NEW ORLEANS. HJ
and made obligatory the observance of common-law rules
in appellate proceedings in the Federal courts, yet that
the courts and people of Louisiana were at liberty, in
the main part of legal practice, to follow the ways to
which they were accustomed, and even to adopt, if they
chose, a system which should be to them more intelligible
still. I have not found anything that could be called a
report of the argument he delivered on this occasion ;
but it produced a profound impression, and was long re
membered as a masterpiece of forensic reasoning and
eloquence. The decision of the court was in accordance
with the ground taken by Livingston. Following up this
success, he recommended a simplification of the existing
practice, which was a medley of the civil and Spanish
law. The suggestion was accepted, and the task of
drawing up a new code of procedure was committed to
his hands. He performed the work promptly ; and when
he had been in Louisiana but little above a year, the
legislature adopted an entire system of practice proposed
and framed by him. It is embodied in an act, passed
on the 10th of April, 1805, consisting of twenty-two
sections, and extending only to twenty-five printed pages.
Under it, all suits were commenced by petition, addressed
to the court and filed with the clerk, stating the names
and residence of the parties, the cause of action, with
places and dates, without prolixity, scandal, or imper
tinence, and concluding with a prayer for relief. The
defendant was brought into court by citation, issued by
the clerk and served by the sheriff. On proof of service,
and of failure to answer, judgment was entered in favor
of the plaintiff. The defendant appearing and answering,
either party could demand a jury. Either plaintiff or
defendant might propose written interrogatories to the
other, which the latter was bound to answer. The whole
118
LIFE OF EDWARD LIVINGSTON.
machinery of attachments, holding to bail, execution, re
view of trials, amendments, compulsory attendance of
witnesses and their examination, fines, references of in
tricate accounts, and the several writs known to the com
mon law, were all provided for in the act.
This was certainly the shortest and simplest code of
procedure which had existed since very primitive days.
The professional reader will discern, in the above out
line of it, a clear resemblance between its leading features
and those of some much later and more elaborate systems
of practice. I have been assured by an aged and eminent
lawyer and judge from Louisiana, that its practical work
ing was better than that of any of the systems with which
he had been acquainted.*
The administration of justice in Louisiana, at this
* A quarter of a century later,
Mr. Livingston, in a letter to Jere
my Bentham, gave the following
reminiscences of this short code of
procedure :
" A simple system was substituted,
based upon the plan of requiring each
party to state, in intelligible language,
the cause of complaint and the grounds
of defence. I comprised it in a sin
gle law of a few pages ; and al
though, from its novelty, many ques
tions may be naturally supposed to
arise under it, before the court and
suitors become accustomed to its pro
visions, yet our books of reports, from
1808 to 1823, contain fewer cases
depending on disputed points of prac
tice than occurred in a single year,
1803, in New York, where they pro
ceed according to the English law,
which has been in a train of settle
ments by adjudication so many hun
dred years. An anecdote to exem
plify this may not be unacceptable
to you. When I was pursuing my
profession at New Orleans, a young
gentleman from one of the common-
law States came there. He had been
admitted to the bar in his own State,
and was, of course, entitled to admis
sion in ours, if found by examination
sufficiently versed in our laws ; he
had studied them, and was ready to
undergo the examination, but ex
pressed to me his regret that a long
time must elapse before he could
make himself master of the routine of
practice, with which, in our system,
he was entirely unacquainted, and,
asking to be admitted into my office
until that could be effected, requested
me, with much solicitude, to tell in
what period I thought he might,
with great diligence, be enabled to
understand the rules of practice, so
difficult to be acquired according to
the common law. I answered that
it was not very easy to calculate to
an hour, but as he was engaged to
dine with me the next day, at four,
I thought I could initiate him in all
the mysteries of the practice before
we sat down to dinner ; nor was there
any exaggeration in the statement.
What will your articled clerks, tied
for seven years to an attorney s desk,
say to this ? " Works of Bentham,
edited by Bowring, vol. xi. page
52.
EMIGRATION TO NEW ORLEANS.
119
period, was attended with some of the inconveniences
which interrupted the business at Babel. The records
of the courts were kept in the English language. The
process and pleadings were written and the proceedings
conducted primarily in English. But it was often ne
cessary, and it was the constant practice, to translate the
pleadings and afterwards all the evidence into French,
Spanish, or German, and sometimes into all these, in
order to reach the comprehension of the whole jury. A
sworn interpreter was attached to the court, competent to
speak all these languages. No advocate often attempted to
address a jury in any but his mother tongue. So it was
the common custom to employ at least two advocates on
the same side, who followed each other, each in his native
language.
Mr. Livingston understood all these languages perfectly
when spoken by others, and spoke them himself, the
French fluently and clearly, Spanish and German not so
easily or so well. I have conversed with a gentleman
who distinctly remembers hearing him argue more than
one cause, but not many, in French. These were simple,
ordinary, and perhaps unimportant cases. He would not,
as my informant believes, have made the attempt in any
other.
Mr. Livingston was always a zealous member of the
fraternity of Masons. He had held a high office in the
order at New York, and soon after becoming a citizen of
New Orleans, was chosen to preside over the Louisiana
Lodge, then newly organized. At its first meeting, he, in
an eloquent address, consecrated its hall, as a Temple to
Harmony and Virtue. He referred to the past history
and present objects of the Masonic order, and defended
its principles, and even its mysteries, as furnishing some
antidote against the evils of partisan rage and personal
120 LIFE F EDWARD LIVINGSTON.
discord. The original notes from which he spoke on this
occasion are now lying before me. I quote from them
the following passage, in order to relate a singular and
immediate effect which its delivery produced :
" My brethren, have you searched your hearts 1 Do
you find there no lurking animosity against a brother]
Have you had the felicity never to have cherished, or are
you so happy as to have banished all envy at his pros
perity, all malicious joy at his misfortunes ? If you find
this is the result of your scrutiny, enter with confidence
the sanctuary of union. But if the examination discovers
either rankling jealousy or hatred long concealed, or even
unkindness or offensive pride, I entreat you, defile not
the altar of Friendship with your unhallowed offering ;
but, in the language of Scripture, Go, be reconciled to
thy brother, and then offer thy gift.
When the orator had feelingly and impressively pro
nounced the last of these sentences, he was interrupted
by a movement of two men in the audience immediately
before him, who at that instant, with mutual sobs, rushed
into each other s arms. They were veritable brothers,
who, several years before, had become embroiled, and
had not spoken together since. " No triumph at the
bar or in the tribune," said Livingston afterwards,
" could be worth the satisfaction I felt at that moment."
Mr. Livingston s best successes at the bar were ac
complished by hard and direct blows. The truth could
scarcely escape his search, and his method of making it
appear plain to others was simple and usually concise. A
contemporary writer said that he was " as lucid as day
light." A few propositions which, ordinarily, no one was
prepared to gainsay, would lead straight to the conclusion
he sought to enforce. This method in advocacy, coupled
with a strong conviction of being in the right, gave him
EMIGRATION TO NEW ORLEANS.
at times great power. But the effrontery of deliberate
sophistry he did not possess ; and if in the progress of a
trial he discovered that lie was clearly on the wrong s j(l e ,
he was thenceforth sometimes positively feeble. To this
I have the testimony of those who have witnessed the
change which came over him on such occasions.
But there was no question about his early supremacy
at the bar of New Orleans. The following- tribute to his
superiority rather too warm to be literally translated
into English he received, on the afternoon of the day
upon which he had spoken against the sweeping intro
duction of common-law practice into Louisiana, as an
ordinary business communication from one who was
perhaps better qualified than any other man there for
a professional rivalship with him :
"13 Novembre, 1804.
" MCWSIEUR : M. Alexandra doit venir me prendre,
ce soir, pour nous reunir, chez vous, sur les 7 heures, afin
de determiner le parti que nous avons a prendre relative-
ment a la reponse a faire dans 1 action intentee par St.
Julien contre Declouet, Duralde, et autres.
" Serez vous dispose a cette conference 1 Ayez la bonte
de me le faire dire.
" Jusques la permettez moi que je vous paie le tribut
de felicitations que merite la grande habilite avec laquelle
vous avez traite, ce matin, la grande question de com
mon law.
" Vous y avez deploye une eloquence rare ; j avoue que
je n ai jamais ete plus emu que par les images frappantes
que vous avez faites de tons les inconveniens qui resul-
teraient de cette grande innovation, si elle avait lieu.
" Vous avez ete profond depuis le commencement jusqu a
la fin de votre argument ou, pour mieux dire, de votre
16
LIFE OF EDWARD LIVINGSTON.
discours ; mais vous avez ete grand, sublime, admirable,
etonnant, dans votre peroraison.
" J en suis encore plein de la plus vive et de la plus
sainte emotion.
" Heureux le peuple dont les interets seront defendus
par un homme tel que vous !
"J aurais desire, et je desirerais que tous les Louisi-
annais eussent ete presents a cette importante decision ;
ils eussent ete bieu ingrats, s ils n eussent pas partage
tous les sentimens d estime et de reconnaissance que
vous professe " 1 humble
"E. MAZUREAU."
Mazureau was the leading counsel against Livingston
in a severe and important litigation soon to be referred
to, a litigation destined to exert a marked and perma
nent influence on the career of the latter.
It is said that there were several eminent lawyers of
the city who did not cordially enjoy Livingston s acknowl
edged superiority, and who would have been glad to have
him out of their way. It is certain that he encountered
very zealous and determined professional opposition in
his endeavor to attain sudden fortune. But his temper
was so mild and so genial that it was impossible for
any one to have a personal dispute with him growing
out of professional intercourse. Even those to whom
was ascribed the greatest jealousy of his position, con
sidered his presence indispensable at their social reun
ions. There he was always the soul of gayety and
good-humor. His light jokes, stories, and puns were
inexhaustible, and were given with peculiar spirit and
dramatic effect. He was accustomed to act out the
parts of the persons of his anecdotes, rising and illus
trating the matter, with glee of a contagious sort. There
EMIGRATION TO NEW ORLEANS.
was no satire in his conversation, no sharpness in his
wit; the charm of his society was in a whole-souled.
laughing 1 humor, a perfect freedom from the airs of offen
sive egotism, an ahsolute amiahility. Judge Carleton,
in giving the writer, after the lapse of half a century, his
personal reminiscences of the occasions just mentioned,
chuckled over the memory of Livingston s pleasantries.
On heing requested to call to mind some samples of the
anecdotes referred to, he said that nothing could be more
volatile than the substance of these anecdotes. The man
ner of telling them was the main thing about them. He
could remember but three. One was that of Livingston s
first lesson in eating pork at Esopus ; another was a live
ly description of the process of making sausages which
he called rollichers by the farmers of Dutchess County;
and the third was a story running as follows : A traveller
stopped at an inn, near Rhinebeck, early in the morn
ing. The landlady, with her ladle, was salting some but
ter which had just been churned. She was a snuff-taker,
and a quantity of the dust had settled at the tip of her
nose, threatening to drop into the butter. She inquired
of the guest, " Do you stay to breakfast "? " " Madam,"
he replied, " as it may fall out."
Mr. Livingston always took much interest in mechan
ical inventions, and, even when most pressed by profes
sional duties or personal cares, found some leisure to
study the principles of mechanics, with a view to dis
covery and improvement. Often, side by side with the
Pandects, and among his bundles of papers, one might
see some small machine made for the purpose of illus
trating a novel idea. A carpenter who lived near him
in New Orleans, and with whom he maintained the most
friendly relations, usually had in hand some model under
his direction. " It is singular," this man used to say,
OF EDWARD LIVINGSTON.
" that a lawyer should understand my trade so well as
Mr. Livingston does ; I know nothing in the world of
his."
An ordinary acquaintance would not have discerned
that Livingston, at this period, was otherwise than con
tented in his new home. But all his occupation and all
his prospects of early success could not repress his in
ward anxiety to return to his family and native State.
He counted the three or four years which he believed
that he probably must remain absent from both, and
sometimes shuddered to think of the possibility that the
time might be considerably, perhaps indefinitely extended.
At this period he endured, in fact, all the sorrows of an
uncertain though voluntary exile.
But for this homesickness he presently found a solace
in his acquaintance and marriage, on the 3d of June,
1805, with Madame Louise Moreau de Lassy, the young
widow of a gentleman from Jamaica. The previous his
tory of this lady with whom all the remainder of his
life was to be passed in entire and mutual devotion
was eventful and interesting. Her maiden name was
Davezac de Castera. Of her family I have seen an ac
count from the pen of M. Armand D Avezac,* one of
her relations, still living in Paris. This account shows
the lineage to have been long and honorable. Mrs. Liv
ingston s more immediate ancestors had emigrated from
France to St. Domingo, where they possessed much
wealth and influence before the revolution in that island.
Tn that bloody affair, her father, two brothers, and the
* The correct and original orthog- in various parts of the world. For
raphy of the name, the apostrophe be- a notice upon him and his writings
ing disused only by the members of <vide (under the title " Avezac-Ma-
the family in America. M. Armand caya, Marie-Armand-Pascal D ")
D Avezac is an eminent geographer, Didionna ire Universel des Contem-
author of several works of merit, and porains, par Vapereau, Seconde Edi-
member of many scientific societies tion, page 77.
EMIGRATION TO NEW ORLEANS.
aged grandmother met their fate, while her mother, her
self, a widow at the age of seventeen, her hrother Auguste,
afterwards Major Davezac, and her infant sister, who sub
sequently became the wife of Judge Carle ton, of Louisiana,
narrowly escaped massacre, reached the United States by
different vessels, and were afterwards reunited at New Or
leans. From affluence they were reduced to poverty. It
was in these circumstances that the acquaintance between
her and Mr. Livingston was formed, and their alliance
contracted. It is said that at this period her beauty was
extraordinary. Slender, delicate, and wonderfully grace
ful, she possessed a brilliant intellect and an uncommon
spirit. We shall hereafter have occasion to see that she
had all the qualities requisite to appreciate, to stimulate,
and in a great degree to guide such a man as Livingston.
Yet he continued to chafe under the necessity of pro
longing the absence from his children and his native State.
On the 10th of August, two months after his marriage, he
wrote to his sister, Mrs. Tillotson, " I have now, indeed,
again a home, and a wife who gives it all the charms that
talents, good temper, and affection can afford; but that
home is situated at a distance from my family, and in a
climate to which I cannot, without imprudence, bring my
children."
From his first appearance in the courts of Louisiana
he had stood among the foremost members of the bar ;
he was now the first lawyer among the foremost there.
His fireside was a happy one ; and to outward appearance
all circumstances concurred to reconcile him to a perma
nent residence where he was.
Yet in his heart, as we have just seen, he sighed for
New York and for his old associations ; and everything
seemed to favor the early accomplishment of his wishes.
His income was increasing yearly, and he had acquired,
126 LIFE OF EDWARD LIVINGSTON.
besides the Batture, several valuable pieces of real estate,
from which he had large hopes of soon realizing his
main object. Some of these acquisitions he had already
disposed of advantageously, and one of them, an exten
sive tract of land, he had cleared from all incumbrances,
expecting for it an early market for a sum sufficient to
enable him to pay his debt to the United States in full,
leaving him possessed of still other property, enough for
the foundation of a competence, if not a fortune. All
within three years from his first landing, a stranger, in
Louisiana.
But obstacles and dangers were destined now to beset
him, and to postpone the fulfilment of his plan for a
period which even he would not then have been able to
contemplate without discouragement and dismay.
In the first place, he narrowly escaped a ruinous, if not
fatal blow, from the hands of General James Wilkinson,
Commander-in-Chief of the army of the United States.
The latter had been on terms of intimacy with him dur
ing the first months of his residence at New Orleans,
and then leaving for New York and Washington, had
thence written to him letters expressing the highest ad
miration and warmest regard. Returning, he reached
New Orleans in November, 1806. Mr. Livingston
called upon him on the day of his arrival. The visit
was returned, and the General supped at the house of
his friend. During that evening, the latter mentioned
casually to his guest that an order of Aaron Burr for
money had been presented to him by Dr. Bollman, a
short time before, to his surprise, as he could not con
jecture how Bollman, whose circumstances he had under
stood were narrow and embarrassed, should have such
a sum due to him from Burr. The fact thus mentioned
seemed to make no impression on the mind of the
EMIGRATION TO NEW ORLEANS.
General, who continued to treat Mr. Livingston in a
cordial manner, both then and at several visits which
afterwards passed between them.
This was just after Wilkinson, having encouraged the
development of Burr s mysterious scheme, deeply soiling
his own hands with it, as it would seem, had concluded
to betray the scheme and its author. He had lately com
municated his knowledge and suspicions to the President
of the United States, from whom he was now receiving
orders of a plenary kind, justifying him in vigorous dis
cretionary measures for stifling the dreaded conspiracy
and bringing to punishment all who should be found
among the conspirators.
His first step, at New Orleans, was the military arrest
and removal of Dr. Bollman and two other persons,
a proceeding which, as soon as it became known, startled
and agitated the community. The indignation of a por
tion of the people, and particularly of members of the
bar, was great. Mr. Livingston having but a very slight
acquaintance with Bollman, and none at all with the
other persons arrested, though he shared strongly in the
general feeling of the lawyers on the subject, did not
feel called upon to take any steps for the release of the
prisoners. But a younger member of the profession,
Mr. Alexander, prepared an affidavit of the fact of the
arrest, and applied to one of the judges for the allowance
of a writ of habeas corpus. The judge refused to grant
it then, but directed Mr. Alexander to make the motion
in open court. The latter thereupon applied to Mr. Liv
ingston, to appear with and assist him in presenting the
motion. He complied with the request, and the writ was
allowed by the court. On the return day of the writ,
a large audience was assembled in court, when General
Wilkinson declared, in writing and in an oral speech,
128 LIFE OF EDWARD LIVINGSTON.
that he had arrested Dr. Boll man on a charge of mis-
prision of treason against the United States, and had
taken measures to secure his safe delivery to the Presi
dent at Washington ; " that he had taken this step for
the national safety, then menaced to its base by a lawless
band of traitors associated under Aaron Burr, whose
accomplices were extended from New York to New Or
leans." He proceeded to throw out hints calculated to
excite in the minds of those present apprehensions of im
minent danger from an armed invasion of the territory
under Burr, whose adherents, he said, were numerous
in the city, including two counsellors of that court ! The
speaker then cast his eyes slowly round the bar, seem
ing to enjoy the suspense which the members suffered
till he inquired if Mr. Alexander were in court. Mr.
Alexander being absent, the General requested that he
might be sent for and committed to close custody, as he
intended, before leaving court, to prefer against him a
charge of high treason. He proceeded : " As to Mr.
Livingston, I have evidence that Dr. Bollman brought
a draft upon him for two thousand dollars and upwards,
from Colonel Burr, which be paid." The General then
read part of an affidavit, purporting to be made by one
Rodgers, the substance of which was, that, nearly a year
before, Rodgers had heard one Keene a person who
had been long absent from the country say that there
were a number of men who had agreed to undertake an
expedition to Mexico, and on being urged to declare who
these men were, had answered, " There s Livingston."
But the affidavit added, that Rodgers had at the time
" thought Keene so little in earnest, that the circumstance
had not occurred to him until within a few days past."
Upon this statement, the Commander-in-Chief of the
army, and lately demonstrative friend of Mr. Livingston,
EMIGRATION TO NEW ORLEANS.
129
held forth to the court and the people assembled, in justi
fication of the arrests already made, and of others which
he might yet have to make ; declaring, amongst other
things, that " desperate cases require desperate remedies ; "
that " it is sometimes necessary to cut off a limb to
preserve the body," to " lop off a rotten branch to save
the tree." He finished by asking the court that his oath
might be taken to the truth of the charges he had ex
hibited. He raised his hand as if to have the oath ad
ministered, when the court mildly suggested the propriety
of reducing the statement to writing. He then hesitated.
One of the judges offered him a seat at his side on the
bench, and proposed himself to take down the charges
and testimony. This the General declined ; upon which
the court suggested that one of the judges would wait
on " His Excellency," * at any time that might be con
venient to him, to take his deposition. This offer the
conquering hero condescended to accept, and retired from
the bar, after receiving the thanks of the presiding judge
for his communication, and an apology for the trouble
the business had caused him.
But just as Wilkinson was about to withdraw, Mr.
Livingston, who, till then, during this shocking scene
of judicial sycophancy, had sat in melancholy silence,
arose to demand and then to entreat of the court that his
accuser should not be allowed to leave the bar without
substantiating his charge upon oath, in order that, if it
should appear that he was guilty, he might be imme
diately committed to prison, and if not, that he should
not be compelled to go home loaded with the suspicion
of crime. The appeal was fruitless, and the General
went his way, promising, however, to make good the
charge on the following day.
* Wilkinson was Governor of Upper Louisiana.
17
130 LJFE OF EDWARD LIVINGSTON.
Mr, Livingston now demanded an opportunity, before
the court and audience, on the spot, to meet the accusation,
so far as it had been made specific. After some difficulty
and hesitation this request was granted; and he thereupon
made a full and simple statement of all the circumstances
connected with the draft of Burr, which he produced and
read. Among the private debts which the transfer of
all his property, before leaving New York, had left un
provided for, was a claim held by the firm of Dunham &
Davis, upon which judgment had been entered against
him. The judgment had been assigned to Aaron Burr,
and Mr. Livingston had once or twice been called upon
to pay the debt, before it was possible for him to do
so. The draft given by Burr to Dr. Bollman ran as
follows :
" DR. SIR : Doctor Bollman will receive whatever
you may be disposed to pay him on my account, and
will give a discharge on payment of fifteen hundred
dollars. A part, at least, of this sum will be necessary
to him ; but I should not have troubled you if I could
have paid him from other resources.
"A. BURR.
" Philadelphia, 26th July, 1806.
" To EDW. LIVINGSTON, Esqre."
When this paper was presented by Dr. Bollman, Mr.
Livingston was entirely unprepared to pay the sum de
manded. But he had recently sold a plantation, receiv
ing the purchaser s obligations, not yet due, in part pay
ment. After two months delay and negotiation, he had
arranged with this debtor to accept his draft for the
amount required to satisfy that held by Bollman ; and
so the latter was taken up, and Bollman received the
money.
EMIGRATION TO NEW ORLEANS.
As to the matters of hearsay vaguely set out in the
affidavit of Rodgers, Mr. Livingston made a most impres
sive declaration that he was utterly ignorant of any of the
plans which it was said Colonel Burr was executing,
either for dismembering the Union or contravening its
laws, except what he had heard from the newspapers, the
communication of General Wilkinson, or public report ;
and that he had never held any communication, either
written or verbal, with Colonel Burr, or any other per
son whom he knew or suspected to be concerned with
him in the subject of those plans.
The effect of this prompt and spirited self-defence,
upon those who listened as well as upon his accuser,
was afterwards recounted by Livingston in the follow
ing language :
" There is a force in the language of truth, there
is a commanding aspect in the looks of innocence, that
can rarely be assumed by falsehood or guilt; and I am
persuaded few if any of my auditors retired with im
pressions to my prejudice. The General seems to have
thought so too ; for, on the following day, when I went
to court to hear the charges he had engaged to exhibit,
I met a gentleman of his family, who, in answer to
my earnest inquiry whether the General s affidavits were
prepared, told me that intelligence had arrived which
did not leave him leisure to attend to them, and that
he did not believe they would that day be produced.
Seeing my extreme chagrin at this delay, he told me
he was persuaded that the General would feel much
gratified, if I could exonerate myself from the charge ;
that he had been forced into the accusation by imperious
circumstances, but that he had little doubt, if I could
remove his suspicions as to the payment of the money
to Bollman, (which, he added, was the principal circum-
132 LIFE OF EDWARD LIVINGSTON.
stance,) he would be ready to do me ample justice, and
concluded by suggesting the propriety of my calling on
the General. This I refused to do, but said that I would
reflect on the other proposition ; and after consulting
with some friends, I determined to send the papers I
had read in court, with some others which I was sure
must remove every doubt as to the nature of the trans
action. Meeting tne gentleman shortly after, I told him
my determination ; and he appointed an hour to call on
me for the documents, and expressed a joy which I am
sure he felt, on the prospect of an arrangement that
would do full justice to my character. He arrived soon
after the hour appointed, but apologized for the delay
by stating that he had since been to the General ; that
he was desirous to do me justice, and anxious that I
should exonerate myself from the charge, but that it
was absolutely necessary he should see me, in order to
show some papers which had been exhibited, and which
I understood were to explain the reasons why he had
thought himself obliged to accuse me ; but that the pay
ment of the money to Bollman was still the principal
charge, and this being explained, he would almost ven
ture to pledge himself that General Wilkinson would
appear in an open court, to be called at his request,
and make any statement I could reasonably desire, to re
move the effect of his charge. The idea of presenting
myself and making explanations to a man who had so
cruelly injured me, appeared, at first, too humiliating to
be borne ; but the pain which these accusations must
give to my friends at a distance, the humiliating cir
cumstances attending a newspaper assertion of innocence,
the certainty that it could never be so effectually done
as by the mode proposed, and shall I be called pusillan
imous ? when I add the fear of inevitable ruin to my
EMIGRATION TO NEW ORLEANS. 133
family from a military arrest and removal, all concurred
to produce the reluctant assent, which, after a delay of
some hours, I gave to the proposition of calling at head
quarters in company with a friend. Eight in the even
ing was the hour appointed. The gentleman to whom
I hefore alluded was so perfectly persuaded that the
visit would end in the most satisfactory arrangement,
and expressed so friendly a pleasure in the prospect, that
I could scarcely believe him in earnest, when, at the hour
appointed, with a mortification he did not attempt to
conceal, he met me on the gallery, at head-quarters, with
a message, that the General had just received a letter
which determined him not to see Mr. Livingston, or
any of his friends. This cruel insult, added to the
injuries I had received, made me feel the humiliation
to which I had exposed myself; and I returned home,
with the full persuasion that I should find the guard
for my arrest stationed at my door."
But his apprehensions of arrest were happily not re
alized. Alexander was seized, and hurried, with others,
as Bollman had been, forcibly, to Washington, where
nothing could be proved against them. Mr. Livingston,
being unmolested, so far defied the military tyrant as
to make an ineffectual attempt to rescue Alexander by
the writ of habeas corpus ; and he published, on the spot,
an address to the people, setting forth all the particulars
of the transaction, and expressing his views and senti
ments concerning it, without reserve or any sign of
fear.
When he returned to his house after the scene in
court, in which the accusation of Wilkinson had fallen
suddenly as a thunderbolt upon him, his young wife,
then the mother of their only child, but a few months
old, besought him earnestly not to withhold from her
134. LIFE OF EDWARD LIVINGSTON.
any part of his confidence. " We have not lived long"
together," she said, " and you may not know the whole
strength of my character or of my affection. Whatever
may have been the scheme of Burr, if you have had
anything to do with it, tell me, so that I may share
your thoughts as well as your destiny." His response
was a laugh so hearty as to dispel in an instant from
her mind any shadow of fear that he was really im
plicated in the mysterious enterprise.
In the obvious characters of these two men, Wilkin
son and Livingston, upon one of whom Thomas Jef
ferson, by a twofold error, was now deliberately bestow
ing the confidence which he had deliberately withdrawn
from the other, there is a good illustration of the prac
tical weakness of human judgment. And the mutability
of a great man s judgment is still more manifest in the
fact that Mr. Jefferson, though then in the decline of
life, was yet to live long enough to reverse completely
in his own mind the double misconception under which
he was judging and acting towards both, at least, as
will hereafter appear, towards Livingston.
Thus a grave danger was fortunately and narrowly
escaped. The imputation was disposed of thoroughly,
and no damaging effect remained. Wilkinson s position
at New Orleans soon became ridiculous, and every cloud
seemed lifted from the prospects of Mr. Livingston.
The object of his most ardent desire was in a fair way
to be accomplished. But he soon had to encounter a
new difficulty, and a more formidable adversary, a
misfortune not so alarming as the one just avoided, but
many times more vexatious.
CHAPTER VIII.
THE BATTURE CONTROVERSY.
A CONTROVERSY, very celebrated in its day,
which took place between Thomas Jefferson, Presi
dent of the United States, and Edward Livingston, citi
zen of Louisiana, relating to the title and possession
of a piece of ground called the Batture Ste. Marie,
was one of the most interesting mental encounters ever
witnessed anywhere. There was every circumstance to
make it so in the relative positions, the ability, the in
terest, and the temper of the parties. They had been
attached personal friends ; but one had become es
tranged in consequence of the misfortune, which he also
regarded as the fault, of the other. In politics, one
had founded a sect of which the other had, in .youth, be
come a disciple, a faith from which the latter never
swerved during a long life. The President had ap
pointed Mr. Livingston to an office, implying a financial
confidence which, he felt, had been disappointed ; and
Mr. Jefferson s charity did not easily cover such a
case. Besides, the then recent accusation of Wilkin
son had doubtless left its bad impression upon his mind.
Being thus predisposed to view in the least favorable
light any act of his adversary which might be construed
as an encroachment upon the public right, he was led, by
the first representations he received concerning Mr. Liv
ingston s Batture enterprise, into an opinion which turned
out to be mistaken ; and was hurried, by his zeal, upon
IS6 LIFE OF EDWARD LIVINGSTON.
a course which he finally, with good reason, regretted.
In this mood he gave to the controversy, both while in
office and for a period after his retirement, the best re
sources of his mind and energy ; studying for himself the
most recondite applicable topics of the civil and the com
mon law, and of the French and Spanish systems, mar
shalling the facts with all his skill, for the use of counsel,
and finally printing, for his own justification before the
public opinion of the country, careful and repeated edi
tions of a most elaborate and finished argument, built
of these labors. With his official vantage, a concurring
Cabinet and Congress behind him, and popular prejudices
favoring his action, an ordinary antagonist he would have
easily annihilated, and might himself have remained for
life unconscious of his error ; as it was, he must have
concluded at last that he had been fairly dislodged from
a false position in a manner more effective than tender.
His blows were indeed aimed at a wounded giant, who,
feeling that he was in the right, and that his own escape
from temporal ruin was staked upon the result of the
conflict, exerted to the utmost every muscle arid nerve
to beat back the assailant.
When two champions of such figure engage with de
liberation and spirit in a strife of this sort, all men are
pugilistic enough to be refreshed by the spectacle. The
combat here attracted and held public attention for years,
in an unusual degree ; both combatants in the course of
it freely appealing, in print, for moral support directly
to the people of the United States. Various volumes
of law-reports are largely given to the arguments of
counsel and decisions of the courts at different stages
of the proceedings ; and elaborate and voluminous re
views of the controversy by the two principals passed
through more than one edition. I propose to give in
THE BATTURE CONTROVERSY.
this chapter a concise account of the subject and man
ner of the dispute.
The region bordering" upon both sides of the Missis
sippi River, for about one hundred and fifty miles above
its mouth, is a low, alluvial country, apparently created
upon the sea by annual deposits of the upper country s
soil brought down during many ages by the turbid
stream. As in other countries thus formed, the imme
diate natural banks of the river are higher than the
general surface of the ground behind them. The ordi
nary height of the water in the channel is but a few feet
lower than the top of the natural banks. During half
of every year, the rains and melted snows of the vast
region which the river drains swell its current towards
the mouth to a height above that of the natural banks,
so that the whole of the lower country referred to, in
cluding the site of New Orleans, was, before its civilized
occupation, yearly overflowed for several months. This
inundation was afterwards prevented by the erection on
each shore of a narrow dike, called a levee, along the
top of the natural bank, high enough to confine the
waters in their most swollen state. The river being
deep and muddy, and pursuing a winding course, neces
sarily, when thus restrained, wrought many gradual
changes in the line of the shores, adding at some points
a constantly increasing soil to one side, and carrying away
compensation from the other.
Early in the last century, the society of Jesuits, under
grants from the King of France, became possessed of
some lands on the bank of the Mississippi, adjacent to
the city of New Orleans. In 1763, and just before the
cession to Spain of the province of Orleans, the order of
Jesuits was abolished in France, and its property was
forfeited to the Crown. Under an edict of confiscation.
18
138 LIFE OF EDWARD LIVINGSTON.
\ the land just mentioned was seized and sold. That part
of it nearest the city afterwards came to the possession
of Bertrand Gravier, who divided it into suburban lots,
which he sold and conveyed to several purchasers. In
the mean time, the river was every year depositing allu
vion in front of the whole ground. The deposit being
lower than the levee, was, in the season of low water,
uncovered, but submerged during the time of the an
nual flood, so that it could serve as an anchorage some
times, and sometimes as a quay; and, being convenient
to the people of New Orleans, it came to be used a good
deal for these purposes without question. This new
ground was called the Batture Ste. Marie.
Bertrand Gravier dying, without children, a little be
fore the transfer of the province to the United States, his
brother John inherited his property by a process known
to tbe civil law, which gave it to bim, according to his op
tion, in the character of a purchaser, and exempted him
from liability for the debts of the estate beyond the prop
erty s inventoried value. The attention of John Gravier
was soon turned to the condition of the Batture, and his
own rights with respect to it; and as early as 1803 he
enclosed a portion of it with a fence. But no very defi
nite claim to the exclusive possession of the ground as
property was set up by him, or by the public, or by any
body, until Mr. Livingston opened his law-office in New
Orleans, and John Gravier became one of his first clients.
Being called upon for his advice, he learned the history
of the ground, investigated the law relative to the rights
of riparian owners in such cases by studying the Roman,
the French, the Spanish, and the English regulations upon
the subject, and then declared his opinion to be that John
Gravier was the legal owner of the principal part of the
Batture Ste. Marie.
THE BATTURE CONTROVERSY.
The rapid growth of New Orleans had now commenced,
and Livingston at once perceived that, if his professional
opinion was sound, there was value enough in the prop
erty for several fortunes. This rural bank must soon
give place to urban wharves like those of New York.
Ah! here was a mine to be worked, and opportunity to
escape from bankruptcy at a single bound, instead of
trudging only the tedious road of careful industry. He
immediately undertook the prosecution of legal proceed
ings on behalf of Gravier, to secure an undisturbed pos
session of the ground, and purchased a portion of the
property for himself. If he could have foreseen the va
riety and extent of the obstacles before him, the weary
war of arguments, demurrers, and appeals ; of popular
prejudice and mob violence ; of forcible official opposi
tion from the executives of two governments, the Ter
ritorial and the National ; of laborious correspondence ;
of voyages to Washington ; of petitions to Congress ;
of ridicule, scorn, and slander, probably he would have
taken the longer and more quiet path to fortune. But
whether or not he would have avoided entrance to the
quarrel, he chose, being in, to bear it, with what spirit
the reader will have an opportunity to see. In the end,
though failing, through the law s delay and the vacillat
ing action of a local court, to reap the full material ad
vantages to which he had looked forward, yet he achieved
a complete moral victory, his latest triumph being, as I
shall have occasion to show, over the inveterate preju
dices of his celebrated adversary. The contest proved a
clear advantage to his reputation, though a clog to his
fortune and a Will-o -the-wisp to his persistent exertions.
The suit of Gravier was against the city of New Or
leans, and his prayer to the court was for the confirma
tion of a quiet title. The litigation proceeded without any
14*0 LIFE OF EDWARD LIVINGSTON.
noise for two years, till early in 1807, when judgment
was pronounced in the plaintiff s favor, one of the three
judges delivering a dissenting opinion. Soon afterwards
Mr. Livingston entered upon his portion of the property
and commenced improving it. Then there was commotion
in the city. The people suddenly awoke to the percep
tion of a great danger and a grievous wrong. They
had piled wood and merchandise upon the Batture Ste.
Marie and had carried away earth from it at pleasure
for some years ; why should they not continue to do so 1
The ground had belonged to nobody; therefore it was
theirs. They had before looked upon Livingston as a
great lawyer ; he now became in their eyes a sort of
legal Mephistopheles, a being of such more than mortal
subtlety that he threatened to employ the forms of law
to appropriate whatever he might covet. This kind of
art had made him rich in a day ; and besides, it was his
intention to proceed at once to such a use of the Batture
as to dam the Mississippi, or, at the least, to turn its
channel so as to inundate the country, drown the city,
and, of course, sink his new fortune. His work upon
the ground was presented by the grand jury as a nui
sance. His laborers were, more than once, driven from
their employment by the populace. The Governor of
the Territory Claiborne was appealed to for mili
tary interference. Being a timid, or at least a peaceable
man, he quieted the tumult for the time, by promising
an immediate reference of the whole matter to the Gen
eral Government.
A messenger was despatched to Washington to re
port the facts, and represent that, in the Governor s opin
ion, the Batture Ste. Marie legally belonged to the
United States as sovereign of the soil. The President
took up the subject with lively interest. Cabinet de-
THE BATTURE CONTROVERSY.
liberations were devoted to it. The Attorney-General
was called upon for his opinion in writing, which, when
produced, was in favor of the title of the United States.
Mr. Livingston was held to be an intruder. Prompt
and efficient measures were taken to extinguish his en
terprise. The Marshal of the District of Orleans was
instructed by a letter of the Secretary of State, of No
vember 30, 1807, "to remove immediately by the civil
power any persons from the Batture Ste. Marie who
had taken possession since the 3d of March ; " and the
Secretary of War simultaneously ordered the command
ing officer at New Orleans to use military force for the
same object, if required by the Governor.
The Marshal found Mr. Livingston s men at work
on the ground. At his command they desisted, but soon
returned by direction of their employer. An order was
obtained from a judge of the Superior Court of the
Territory and served upon the Marshal, forbidding his in
terference, under pain of a contempt of court. He disre
garded the injunction, and dispossessed Mr. Livingston.
The business of the controversy was now fairly opened.
Mr. Livingston brought an action against the Marshal,
in the Federal court at New Orleans, to recover, accord
ing to the forms of the civil law, damages for his ex
pulsion, and a restoration to possession, and, somewhat
later, another action for damages against Mr. Jefferson,
in the district of the latter s residence. He published
pamphlets upon the subject. He made Congress ring
with his complaints. He besieged the Executive with
offers to submit his claim to any form of trial or arbi
tration, whilst loudly demanding a hearing of some sort.
But all his labors were without fruits, so far as the ac
tion of any branch of the government was concerned.
If the President had been a mild despot, in character
LIFE OF EDWARD LIVINGSTON.
and in power, he could not have held his enemy in a
stricter helplessness for the time being. Congress was
friendly to him and deaf to the subject. He utterly re
fused or neglected every entreaty for a fair, or any,
hearing of the case on its merits. In the personal action
against himself, he turned the plaintiff out of court by
demurring to the jurisdiction. The latter seemed to
be, and began himself to feel like, a ruined man. He
afterwards declared, that during this period he keenly
felt all that Spenser describes in the lines,
" Full little knowest thou, that hast not tride,
What hell it is, in suing long to bide ;
To loose good days that might be better spent ;
To wast long nights in pensive discontent ;
To speed to-day, to be put back to-morrow ;
To feed on hope, to pine with feare and sorrow ;
To fret thy soul with crosses and with cares ;
To eate thy heart through comfortlesse dispaires ;
To fawn, to crowche, to waite, to ride, to ronne,
To spend, to give, to want, to be undonne."
Years went by, and Mr. Jefferson passed out of office.
Mr. Livingston had resumed the more even tenor of
professional life, and had made advances in public esti
mation. The litigation of the cause against the Marshal
at New Orleans was approaching a decision. There was
a manifest modification of the popular sentiment, with
respect to the merits of the case. It now occurred
to the ex-President that if the judgment of the court
should be pronounced in Livingston s favor and followed
by acquiescence on the part of the public of New Or
leans, his own conduct would require careful explanatory
treatment to make it appear at all excusable. It would
then be clear, that, acting upon ex parte representations,
and refusing to hear both sides, he had forcibly invaded
the rights of a citizen, because he had the physical power
to do so, and because it happened to be a case in which
THE BATTURE CONTROVERSY. 14,3
his own sentiments had been in unison with those of a
mob. The result of this kind of reflection was that he
furbished, at leisure, the notes and argument which he
had before prepared for the use of counsel, left it all
bristling with vituperation and ridicule of his adversary,
and printed the whole for circulation through the country
in 181 2. This paper is a pamphlet of ninety-one pages,
entitled " The Proceedings of the Government of the
United States, in maintaining the Public Right to the
Beach of the Mississippi, Adjacent to New Orleans, against
the Intrusion of Edward Livingston. Prepared for the
Use of Counsel, by Thomas Jefferson." The author, in
1814, by request of the Editor of the "American Law
Journal," printed at Baltimore, furnished a copy, with
additional notes, for republication in the same number
of that periodical in which first appeared " An Answer
to Mr. Jefferson s Justification of his Conduct, in the
Case of the New Orleans Batture. By Edward Living
ston. Nullce sunt occultiores imidice, quam quce latent in
simulatione officii, aut in aliquo neccssitudinis nomine.
Cicero," a pamphlet of one hundred and ninety-five
pages.
Mr. Jefferson, by his official action in this affair, com
mitted a serious error which proved a serious outrage.
His self-vindication just mentioned was a laborious blun
der; for it called forth a reply from Mr. Livingston of
which no man could well afford to be the subject, a
performance, in its kind, never surpassed, I presume,
by any lawyer. The author of the Declaration of In
dependence was, on political subjects, the wisest and
most eloquent writer of his time. But it was a mistake
for even him to challenge and provoke such an opponent
as Edward Livingston, under the circumstances above
detailed.
144 LIFE OF EDWARD LIVINGSTON.
In method the disputants differed greatly. Mr. Jef
ferson s paper, though relieved by frequent sharp and
rapid incidental thrusts at his adversary, is a rather dry
and labored disquisition, upon topics for the most part
now of little interest to any but the legal scholar. The
answer, though in its stating and strictly argumentative
parts as concise and direct as the other, is yet so over
laid with riches of style, pungency of satire, and fulness
of eloquence, that, in spite of its length, its entire pe
rusal will, at any time, delight the educated reader.
Mr. Jefferson begins at once with his ingenious ver
sion of the facts, having made the following exordium
in the form of a preface :
" Edward Livingston, of the Territory of Orleans, hav
ing taken possession of the beach of the river Mississippi,
adjacent to the city of New Orleans, in defiance of the
general right of the nation to the property and use of
the beaches and beds of their rivers, it became my duty,
as charged with the preservation of the public property,
to remove the intrusion, and to maintain the citizens of
the United States in their right to a common use of
that beach. Instead of viewing this as a public act,
and having recourse to those proceedings which are
regularly provided for conflicting claims between the
public and an individual, he chose to consider it as a
private trespass committed on his freehold, by myself
personally, and instituted against me, after my retirement
from office, an action of trespass, in the Circuit Court
of the United States for the District of Virginia.
"Being requested by my counsel to furnish them with
a statement of the facts of the case, as well as of my
own ideas of the questions of right, I proceeded to make
such a statement, fully as to facts, but briefly and gen
erally as to the questions of right. In the progress of
THE BATTURE CONTROVERSY.
the work, however, I found myself drawn insensibly into
details, and finally concluded to meet the questions gen
erally which the case would present, and to expose the
weakness of the plaintiff s pretensions, in addition to the
strength of the public right. These questions were, of
course, to arise under the laws of the Territory of Or
leans, composed of the Roman, the French, and the
Spanish codes, and written in those languages. The
books containing them are so rare in this country as
scarcely to be found in the best furnished libraries. Hav
ing more time than my counsel, consistently with their
duties to others, could bestow on researches so much
out of the ordinary line, I thought myself bound to fa
cilitate their labors, and to furnish them with such ma
terials as I could collect. I did it by full extracts from
the several authorities, and in the languages in which
they were originally written, that they might judge for
themselves whether I had misinterpreted them. These
materials and topics, expressed in the technical style of
the law, familiar to them, they were of course to use
or not to use, according to the dictates of their own bet
ter judgment. If used, it would be with the benefit of
being delivered in a form better suited to the public ear.
I passed over the question of jurisdiction, because that
was one of ordinary occurrence, and its limitations well
ascertained. On this, in event, the case was dismissed ;
the court being of opinion they could not decide a ques
tion of title to lands not within their district. My wish
had rather been for a full investigation of the merits at
the bar, that the public might learn, in that way. that
their servants had done nothing but what the laws had
authorized and required them to do. Precluded now from
this mode of justification, I adopt that of publishing what
was meant originally for the private eye of counsel."
19
146 LIFE OF EDWARD LIVINGSTON.
This preface is dealt with and the whole subject
opened by Mr. Livingston in the following passage :
" When a public functionary abuses his power by an
act which bears on the community, his conduct excites
attention, provokes popular resentment, and seldom fails
to receive the punishment it merits. Should an individ
ual be chosen for the victim, little sympathy is created
for his sufferings, if the interest of all is supposed to
be promoted by the ruin of one. The gloss of zeal
for the public is therefore always spread over acts of
oppression, and the people are sometimes made to con
sider that as a brilliant exertion of energy in their favor,
which, when viewed in its true light, would be found a
fatal blow to their rights.
"In no government is this effect so easily produced as
in a free republic ; party spirit, inseparable from its ex
istence, there aids the illusion, and a popular leader is
allowed in many instances impunity, and sometimes
rewarded with applause for acts that would make a ty
rant tremble on his throne. This evil must exist in a
degree, it is founded in the natural course of human
passions ; but in a wise and enlightened nation it will
be restrained ; and the consciousness that it must exist
will make such a people more watchful to prevent its
abuse. These reflections occur to one, whose property,
without trial or any of the forms of law, has been vio
lently seized by the first magistrate of the Union, who
has hitherto vainly solicited an inquiry into his title,
who has seen the conduct of his oppressor excused or
applauded, and who, in the book he is now about to
examine, finds an attempt openly to justify that conduct
upon principles as dangerous as the act was illegal and
unjust. This book relates to a case which has long been
before the public, and purports to be the substance of
THE BATTURE CONTROVERSY.
instructions prepared by Thomas Jefferson, late President
of the United States, for his counsel, in a suit instituted
by me against him. After four years earnest entreaty
I have at length obtained a statement of the reasons
which induced him to take those violent and unconstitu
tional measures of which I have complained.
" It would perhaps be deemed unreasonable to quarrel
with Mr. Jefferson for the delay, when we reflect how
necessary Mr. Moreau s Latin and Mr. Thierry s Greek,
Poydras s elegant invective, and his own Anglo-Saxon
researches were to excuse an act for which, at the time
he committed it, he had no one plausible reason to allege.
Such an act, certainly, is easier to perform than to jus
tify ; and Mr. Jefferson has been right in taking four
years to consider what excuse he should give to the world
for his conduct, and still more so in laying under con
tribution all writings, all languages, all laws, and in call
ing to. his aid all the popular prejudices which his own
conduct had excited against me. He wanted all this
and more, to make a decent defence. But it was rather
awkward to press into his service facts which, it is con
fessed, he did not know at the time, and something worse
than awkward to impose on the public, as I shall show
he has, by false translations and garbled testimony. But v1/)n
we must excuse the late President : c his wish had rather
been for a full investigation of the MERITS at the BAR,
that the public might learn, in that way, that their ser
vants had done nothing but what the laws had author
ised and required them to do, and PRECLUDED now
from that mode of justification, he adopts that of publish
ing what was meant originally for the private eye of
counsel. I givfc the words of the author here, lest in
this extraordinary sentence I should be suspected of
having misrepresented or misunderstood him. An in-
148 LIFE OF EDWARD LIVINGSTON.
dividual holding a tract of land, under one whose title
had been acknowledged and whose possession had been
confirmed by a court of competent authority, is violently
dispossessed by the orders of the President of the United
States, without any of the forms of law and in viola
tion of the most sacred provisions of the Constitution ;
the ruined sufferer seeks redress, first by expostulation ;
he offers to submit to the decision of indifferent men,
and he is refused ; he offers to abide by the sentence
of men chosen by the President, and he is refused ;
he offers, in the simplicity of his heart, to acquiesce in
the opinion even of the President himself, and he is re
fused. He is not even permitted to exhibit his proofs.
Fearing the conviction they would produce, he is told that
though the President could take, he cannot restore ; that
he can injure, but not redress ; and that Congress alone
are competent to grant him relief. To Congress then
he applies ; here the same baleful influence prevails.
After two voyages of three thousand miles each, after
two years of painful suspense and humiliating solicitation,
after an attendance of three sessions, he finds that no
means can be devised for his relief; that the friends of
that man who wishes for a full investigation of the
merits at the bar defeat every plan for bringing the cause
before a court, vote against every law providing for a
trial, and effectually, as they think, and he hopes, bar all
access to any tribunal where the dreaded merits of the
case could be shown. Harassed but not dispirited, the
injured party, finding that no legislative aid can be ex
pected to restore his property, at length applies by suit
for a compensation in damages ; he appeals to the laws
of his country, and is willing to abide* by the decision
of a jury, in a country where long residence, great
wealth, the influence which had been created by office,
THE BATTURE CONTROVERSY. 149
and a coincidence of political opinion gave every advan
tage to his opponent. Here, then, is an opportunity which
a man desirous of open investigation will not neglect.
The upright officer who has heen unjustly accused of
oppression, will justify himself to his country, and cover
his accuser with confusion. The vigilant guardian of
the public rights will defend them before an enlightened
tribunal, and expose the rapacity of the intruder. He who
stands conscious and erect will rejoice in the investi
gation of his innocence, he will discard every form, and
proudly dare his adversary to a discussion of the merits !
" But the man I speak of does not do this, - the man
I speak of did not dare to do this. He feared the learned
integrity of a court, he feared the honest independence
of a jury. He intrenched himself in demurrers, sneaked
behind a paltry plea to the jurisdiction, and now pub
lishes to the world that he is precluded from this mode
of justification, and that his wish had been for a full in
vestigation of the MERITS at the BAR.
"If such indeed were his wish, why was it not gratified?
And by whom was he precluded from this favorite mode
of defence I He does not indeed hazard the direct as
sertion that it was the unsolicited act of the court. His
plea to the jurisdiction, his demurrers, not to mention an
attempt to stifle the suit in its birth by a rule to find
security for costs, all these would too apparently falsify
such an assertion. But though not stated in direct terms,
is not the idea strongly conveyed ? Was it not meant to
be thus conveyed I When Mr. Jefferson says that the
suit was dismissed on the question of jurisdiction, and
that his wish had rather been for a full investigation
of the merits at the bar, what are we to conclude ?
What, I repeat, did he intend we should conclude, but
that the decision of the court was unsolicited and con-
150 LIFE OF EDWARD LIVINGSTON.
trary to his wish? and yet he, the gentleman who tells
us this, had put in a plea to the jurisdiction, that is to
say, prayed the court to dismiss the cause without an in
vestigation of the merits. He did more : fearing that
this question might he decided against him, he put in a
demurrer to the declaration; that is to say, he took an
exception to its form, and prayed the court a second
time, that, on this account, also, the cause might be dis
missed without an investigation of the merits. He did
not stop here : a third battery was erected ; he pleaded
another plea, that he did the act complained of as Presi
dent of the United States, and that therefore he ought
not to be made liable in his individual capacity ; and a
third time prayed to the court that the cause might be
dismissed without an investigation of the merits. How
Mr. Jefferson can reconcile these pleas with his wish to
obtain a hearing on the merits, it is difficult to conceive.
The coward who, on receiving a challenge, resorts to
the interposition of a magistrate, might as well bluster
about his desire fairly to face his adversary, and com
plain that he was precluded from giving him satisfaction.
Yet this preclusion is stated by Mr. Jefferson as his rea
son for publishing the work which I am now about to
examine. He had many advantages in the execution,
and promised himself many more in the effects of this
production. The subject had been fully and ably dis
cussed, but the publications on the adverse side were not
in many hands. A considerable time had elapsed since
the subject engaged the public attention. He had there
fore only to arrange the arguments in his favor, to sup
press or mutilate the conclusive answers which had been
given to them, to collect all the quotations that had been
used in the discussion, to give a new dress and the sanc
tion of his name to the calumnies circulated against his
THE BATTURE CONTROVERSY.
opponent, and he would make a book that should astonish
by the polyglot learning of its quotations, amaze by the
profundity of its borrowed research, and delight kindred
minds by the poignant elegance of its satire. Add to
these the advantages of using hearsay testimony, ex parte
testimony, interested testimony, his own testimony ; of
quoting authorities with an et ccetera, for those parts
which bear against his positions; of omitting a word
in the translation of a deed, and founding a long argu
ment on the false reading thus created ; add the facility
of gaining over to his party that large portion of man
kind who find it much more convenient to be convinced
by the reputation of the author than to examine his work,
and, above all, the hope that disappointment and despon
dence might silence his opponent, and we shall have
much better reasons for resorting to a publication of his
instructions to counsel than the alleged preclusion of
a hearing at the bar. Whatever may have been the
causes which produced this work, I rejoice exceedingly
in the effect. My wish, also, had rather been for a full
investigation of the merits at the bar ; but an appeal to
the public is preferred, and I shall not decline it. Causes
of less importance have sometimes excited an interest,
not only in the countries where they originated, but
abroad. The despotic King of Prussia could not op
press one of his subjects under the forms of law with
out exciting the indignation of Europe. Lawyers of the
greatest eminence took cognizance of the affair ; and the
force of public opinion, even in a military monarchy,
obliged the prince to do justice to his vassal. Shall I
then fear a less beneficial effect, when I can show that
the free citizen of a free country has been deprived of
his property by its first magistrate, without even the
forms of law \ I do not fear it. However dull may
LIFE OF EDWARD LIVINGSTON.
be the discussion, however laborious the research, it will
not deter those who have an interest in inquiring whether
their servant has done his duty, or has been guilty of
unconstitutional violence. I invite readers of this de
scription to follow me in the investigation I am about
to make."
The ex-President thought fit in his pamphlet to make
and argue several points not relevant to the government s
rights on the theory of which his action had been based,
points which, therefore, could only be used with a view
to exciting or keeping alive prejudices against his ad
versary. One of these positions was that the deeds from
Bertrand Gravier were as comprehensive as the convey
ance to him ; so that if he had once owned the Batture,
he had parted with it also. Another ground thus taken
was, that if the property had descended from Bertrand
Gravier, John did not take the whole, but only an in
terest in common with his brother and sister, who resided
in France. Both these propositions were maintained at
length and with pains by Mr. Jefferson. In support
of the former, he incorporated in his argument a printed
copy of one of the deeds from Bertrand Gravier, in the
original Spanish, with an English translation of his own
in an opposite column, and offered it as a fair specimen
of all the conveyances by the same proprietor. The
answer of Mr. Livingston showed that the late President
had mistranslated the Spanish record by omitting a ma
terial word ; that still the particular conveyance was an
exception to the others ; that some of them bounded the
land they conveyed in front in terms by the levee, and
that others referred to a map or plan exhibiting the same
boundary ; that the Batture was expressly reserved in
some, and in others expressly granted; and that in the
latter cases Mr. Livingston had purchased from the
THE BATTURE CONTROVERSY. 153
grantees. These materials are used very effectively in
the answer, which, after insisting that the only questions
which it became Mr. Jefferson to discuss were, Did the
land belong to the United States 1 Had the government
a right to seize it ? takes leave of this point in the fol
lowing way :
" I think I may, therefore, dismiss this first head of
justification, and that I may, without flattering myself,
believe that I have shown it both immaterial to the de
fence of the late President, and destitute of any founda
tion if material ; I have shown that none of those
front proprietors can be considered as owners of the al
luvion, because their deeds refer to the plan, which does
not carry them to the river ; because very many of them
refer not to the river, but to the levee, as their front ex
posure ; and because those who have an express convey
ance (except one) have disposed of their right, by sale, to
the present claimant ; and in all events, if theirs, it ought,
as their property, to have been as sacred as if mine."
Mr. Jefferson s other suggestion, in favor of the French
brother and sister of Gravier, is diligently refuted in
several paragraphs, beginning in the following quiet and
pungent strain :
" Having thus secured the rights of the front proprie
tors, this provident magistrate next takes the co-heirs of
John Gravier under his paternal care. He has discovered
that John Gravier (in fraud of his brothers and sisters,
as he charitably insinuates) procured the property of his
deceased brother to be adjudged to him; that this Batture
was not comprised in the adjudication; and that it there
fore remains the property of the heirs. And what then,
Sir ] Why, if this statement be true, John Gravier, as
one of the three heirs, would have a right to convey his
undivided third ; but surely it gives none to you to take
20
LIFE OF EDWARD LIVINGSTON.
it away from his grantee or from the co-heirs in France.
As, however, I know it must give great satisfaction to a
mind so feelingly alive to the interests of absentees, to
know that they are not dissatisfied with the transaction,
I have the pleasure to inform you that they have ratified
their brother s sale of the Batture, and that their con
cerns need no longer occupy your attention."
After disposing of these topics, Mr. Livingston pro
ceeds to the consideration of a charge of collusion and
champerty, elaborately preferred in the ex-President s
pamphlet. I quote a part of his observations upon this
head :
" We are now prepared to accompany Mr. Jefferson in
his attempt to show, not that the property belongs to
another, but that it does belong to the United States, and
that he had a right forcibly to seize it. But we are not
so soon to be gratified : more prejudices are to be excited
against the injured proprietor ; another attempt is to be
made to show that his title is defective, as if chang
ing the party injured would lessen the offence. The title
of Mr. Delabigarre, under which I claim a part of the
lands, is said to be illegal, and, of course, I suppose, void.
But if so, does it vest any title in the United States I Ad
mitting that he were guilty of champerty, no new title
would thereby accrue to them. The parties might be
punishable ; the deed might perhaps be declared void ; but
the United States acquire no rights which they had not
before. Why, then, is the subject introduced 1 Because
in a bad cause it is easier to address the passions and
prejudices of men, than to consult their reason or con
vince their understanding ; because it was supposed that
the name of Mr. Jefferson would give new currency to
the forgotten calumnies of New Orleans; and because
some men can never forgive those whom they have in
jured.
THE BATTURE CONTROVERSY. 155
"The repetition of this charge might he excu^ef; if. it
had not before been repeatedly resorted to, if IVj^^gf^
ferson had not seen the refutation, and if he had not
the evidence of the falsity of the charge before him.
"It is begun by an allegation, that, for six years after
his purchase, John Gravier never manifested a symptom
of ownership until Mr. Livingston s arrival from New
York, and that then Gravier received his inspirations
that the beach (as he chooses to call it) was his ; that I
tempted him to lend his name to the suit, but really pros
ecuted it for my own benefit. This charge is made with
an air of levity, and a wretched attempt at wit, which
could proceed from no one but a man hardened, by re
peated attacks on his own character, into a total insensi- ryfY^
bility for that of others. / first gave the idea to Gravier
that the property ivas his ! yet, ten years before my
arrival, his brother had, by four several recorded deeds,
disposed of different parcels of it ; and Mr. Jefferson,
who makes the charge, knew this fact. I first stirred
up a dormant claim! yet I did not arrive until the
7th of February ; and in December preceding, a square
of five hundred feet was begun to be enclosed with a
levee and ditch, and Mr. Jefferson had evidence of the
fact. I first gave Gravier an idea of his claim! and
yet, previous to my purchase, he had agreed to sell it to
Mr. Clark and Mr. Morgan ; and Mr. Jefferson had this
evidence of the fact, that I had published it at the place
where both those gentlemen live, and that it was never
contradicted. What does he oppose to this mass of
proof? Nothing but an assertion that he might safely
presume that Gravier s work was not begun while the
French governor thought the country belonged to his
master, and most probably not until after my arrival.
Now he knew that I had arrived in February, 1804*, and
156 LIFE OF EDWARD LIVINGSTON.
he acknowledges that the enclosure was ordered to be
destroyed on the S2d of that month ; so that Mr. Jef
ferson thinks it probable that, arriving in New Orleans
on the 7 tn of February, I should immediately find out
Gravier ; inspire him with so much confidence as that,
by my persuasion, he should set up a most unfounded
claim ; proceed to assert it by making, at a great expense,
a ditch and embankment round a square of five hundred
feet, that is to say, two thousand feet of levee ; and that
this plan should be formed by a perfect stranger in the
country, communicated to a man he had never seen be
fore, and that the whole should be executed in fourteen
days from the time that he first touched the shore. This
Mr. Jefferson thinks so probable as to counterbalance
oaths, records, and the silent assent of those most conu-
sant of the fact, and most interested in contradicting
it ; and thus he uses the influence of his late exalted sta
tion, to perpetuate refuted calumnies, and stigmatize the
character of a man whose fortune he had wantonly
ruined."
The course of the argumentation with respect to the
merits of the case cannot be pursued here ; but a few
additional passages may be quoted, as samples of the char
acteristic manner of Mr. Livingston s performance. In
the following paragraphs he sets about the more direct
part of the issue :
" Having repelled all the skirmishing attacks which
have hitherto impeded our progress, we at length ap
proach the body of Mr. Jefferson s defence. It consists
of the following points:
" I. That alluvions of navigable rivers, by the law of
France, belong to the King ; and that those of the Mis
sissippi have been transferred, with the other sovereign
rights, to the United States.
THE BATTURE CONTROVERSY.
" II. That the right of alluvion accrues only to rural,
not to urban possessions.
"III. That the property in question is not an alluvion,
but part of the bed of the river, which belongs to the
sovereign.
"IV. That the use I made of the property was dan
gerous to the safety of the city of New Orleans, and an
infringement on the public right to navigate the river ;
that my works were a nuisance, and that the President
had a right to abate it.
" In discussing these points, I feel an embarrassment
from the reflection that almost everything I shall say has
been anticipated, either in my own publications or those
of the learned counsellor and excellent friend * whose
disinterested zeal has advocated my cause ; and I cannot
but admire the patient perseverance with which Mr. Jef
ferson consents to transcribe the oft-repeated authorities,
to rally the broken sophisms, and once more array in his
service the ten times refuted arguments which, at differ
ent periods, have been worn out in his defence. I will
not, however, be outdone in the contest. I will revive the
charge, as often as he shall choose to repeat the defence ;
nor will I cease to expose his oppression to the public,
until I have an opportunity of arraigning him before
another tribunal."
Mr. Jefferson in his pamphlet had expended much
laborious research to show that by the French law allu
vion belonged to the Crown. In the course of this part
of the discussion he found himself at variance with the
published arguments of his professional associates, men
profoundly learned in the French law. In the answer,
Mr. Livingston, after exhausting the history of the sub
ject, and showing that in the year 1786 the King of
* Mr. Peter S. Du Ponceau.
1,58 LIFE OF EDWARD LIVINGSTON.
France had, by letters-patent, publicly disclaimed any
title " to the alluvions, accretions, and deposits formed
on the banks of navigable rivers," and acknowledged that
they " belonged to the proprietors of the soil adjacent to
the shores," concludes this head of his argument and ap
proaches another thus :
" After this formal recognition of the principles I con
tend for by the highest judicial and legislative authority in
the kingdom ; after this solemn disavowal of the regal
rights set up by my adversary ; after the publicity given
to the decision at a time when, if I mistake not, Mr. Jef
ferson filled a high station in the capital of France, it is
a little extraordinary to hear him assert so positively that,
since the edict of 1793, no doubt could exist as to the
laws of France on the subject of alluvion, and that those
laws vested them in the King. The pertinacity with which
this opinion is adhered to is the more extraordinary as
the position was abandoned by two of his fellow-laborers
out of three in the same cause, and by the two who, being
educated in France, were, without any disparagement to
the acknowledged merit and talents of the third, better
qualified to determine a question of French law than any
gentleman whose professional education was entirely
American. The solicitude of our author to obtain the
support of his two colleagues on this important point is
truly ridiculous. In a labored note, he tries to coax
Mr. Moreau out of his opinion, or to persuade the world
that he is not decided in pronouncing it; and his ex
tracts now show me why this memoirs of Mr. Moreau
was never suffered to meet my unhallowed eye. The
Secretary of State once (I believe inadvertently) men
tioned its existence; but on my expressing a desire to
see it, changed the conversation, and I found there were
reasons why it was deemed improper to communicate
its contents.
THE BATTURE CONTROVERSY.
" The decided manner in which his other advocate, Mr.
Thierry, had opposed his favorite doctrine, gave Mr. Jef
ferson no hope of soothing or converting him ; and his
arguments on this point most assuredly created no desire
to enter the lists with so formidable an adversary.
" The President of the United States, therefore, skulks
out of the ranks to carry on his irregular attacks, and
then rejoins the standard of his leader, with a compli
ment which he hopes will disarm his wrath and secure
forgiveness for his desertion."
The following is the mode in which Mr. Jefferson s
distinction between rural and urban possessions, with
respect to property in alluvial accretions, is answered:
" We next come to a position of which Mr. Jefferson
seems peculiarly enamored, namely, that the right of allu-
vion accrues only to rural, not to urban possessions,
therefore, that had the Batture been an alluvion, and gov
erned by the Roman instead of the French laiv, the con
version of the plantation of Gravier into a suburb made
it public property. These words, I should suppose, mean
that although Gravier s plantation had been increased by
alluvion to a very considerable extent, prior to his laying
it out into a suburb, the very act of dividing it into lots
vested in the public all that part which had been created
by alluvion, an assertion which he leaves unsupported
by either argument or proof, and which modifies his posi
tion in a manner that renders it entirely inapplicable to
the present case. This position is, that the Roman law
gave alluvion only to the rural proprietor of the bank,
urban possessions being considered as prcedia limitata?
Now, admit this wild assertion to be true : does it follow
that the alluvion created before the ground became a city
belongs to the public 1 ? On the contrary, does not Mr.
Jefferson himself allow that it is an accessory, and that
rf
160 L ! FE OF EDWARD LIVINGSTON.
the accessory must follow the principal I If this be so,
the question is at an end ; because the ground on which
my house stood, and from which I was driven, was
formed long before the existence of the suburb.
"But the position is not only inapplicable, but unfound
ed. Let us examine how it is supported. The Institute,
in defining this species of property, or rather this mode
of acquiring it, says, What the river has added ayro tuo
by alluvion is thine ; the Digest uses the same expres
sion. Now ayer in Latin, and dypos in Greek, mean a
field. Land in the city is called area, a lot. Therefore
you must show, says the conclusive and most learned rea-
souer, that your alluvion accrued to a field, or you are
not entitled to it ; because there are no fields in a city.
I must answer this argument, or it will be supposed that
this very learned page has silenced me ; and many an
honest citizen who understands no Greek, but honors the
sight as much as Boniface did the sound of it, will
suppose some unanswerable argument lies hid in the
cramp characters that adorn it. Seriously, then, let me
tell my learned adversary, first, that ager^ in Latin, means
not only a field, but the generic term land^ and that, too,
situate in a village, and, to take away all cavil, in a city"
Here, after quoting some plainly conclusive Latin au
thorities as to the meaning of the word ager, and after
following closely for some time several philological con
siderations urged in the paper of the ex-President, the
answer proceeds :
" But I think in the reasoning to which Mr. Jefferson
refers me, and which he makes his own, it is said that
there are prcedia urlana and prcedia rustica, city estates
and country estates, and that I show nothing unless I
show that the right of alluvion accrues to the former by
name ; but surely, when I show that it accrues generally
THE BATTURE CONTROVERSY.
to estates, to lands, to the soil, when I show that every
term used to express an interest in real estate is em
ployed on the occasion, I show enough to throw the
burthen of any exception upon my adversary. I might
say to him, I have shown that this right accrues to the
ager, to the fundus, and the prcedium ; and I have shown,
by the most approved definitions, that all these terms
include lands in the city as well as in the country. If
the law, however, does not apply to city property, do you
show it. There is, Sir, I know, the prcedium urbanum
and the prcedium rusticum ; but permit me, most learned
civilian, to suggest to you that there is also the servus
urbanus and the servus rusticus, and that you might as
well tell me, when I cited any one of the thousand laws
on the subject of slaves generally, that it did not apply
to the town slave, because he was not particularly named;
nay, you might make the same exception to the coun
try slave, and thus show that what applied to all gener
ally, could not affect any in particular. And if it were
not too presuming, I might add, you have made a slight
mistake in supposing that prcedia urbana were always
situate in a city ; the name, Sir, has misled you. Before
you write books on the civil law, and, above all, before
you rely so much on your knowledge of it as to strip a
citizen of his property, it would be well to study and
digest its principles. Its maxims are, In eo quod
plus est semper inest et minus ; c /w toto et pars con-
tinetur ; Semper specialia generalibus insunf Ponder
on these, learned Sir, and do not insist that a bequest of
horses, generally, does not include those of the testator
because they happen to be white horses, black horses, or
even pied horses.
" But if you will not be content, without a positive law,
that the right of alluvion accrues to property in the city,
21
LIFE OF EDWARD LIVINGSTON.
as well as the country, I believe, Sir, I must gratify you,
If it had not been, however, for the bad habit you have
fallen into, of being learned at the expense of others, of
repeating quotations without looking at the text, you
would have saved me this trouble, and yourself the mor
tification of repeating a triumphant challenge to produce
an authority which you would then have seen was under
my hand.
" You have repeated, after those who went before you,
the quotation, c /w agris limilatis jus alluvionis locum non
habere constatj had you read the rest of the same law,
you would have found the very authority you challenge
me now to produce : Et Trebatius ait, agrum qui hosti-
lus devictis ea conditione concessum sit ut in civitatem
veniret) hater e alluvionemj And Trebatius says, that
land conquered from the enemy, and granted on condition
that it shall be included in a city, is entitled to the right
of alluvion.
" I repeat that I need not have produced this authority,
and that nothing but my desire to oblige you, Sir, has
induced me to submit it to your inspection ; but after
this, I hope we shall not have a third repetition of the
challenge. Such might be my address to my erudite
adversary, if I were not restrained by respect for the
(Conviction he expresses of the soundness of the principles
I am forced thus reluctantly to attack.
" The common law of England is next resorted to ;
and I am again challenged to produce a decision under
that law, where the right of alluvion to city property has
been allowed. Having shown one under the law which
governs the country in which the lands lie, I have, I
think, done enough ; but I am resolved that none of the
wretched shifts resorted to shall go un exposed, and that
the President of the United States shall not have it to
THE BATTURE CONTROVERSY.
say, that his conduct would have been legal, had the land
been in England, and he, King of that country.
" First, then, I answer this appeal to the common, as
I did that to the civil law, by giving the general rule, and
calling on my adversary to show the exception, if it exist.
Blackstone, speaking of this species of property, even in
the strong case of alluvions of the sea, says, c And as to
lands gained from the sea, either by alluvion, by the wash
ing up of sand and earth, so as in time to make terra
fir ma, or by dereliction, etc., in these cases, the law is
held to be, that, if this gain be by little and little, by small
and imperceptible degrees, it shall go to the owner of
the land adjoining/ The same law, he says a little be
low, applies to a river. Now as land, in the English law,
means every species of soil, whether urban or rural, as a
lot of ground does not cease to be land although it be
situate in a city, I should suppose this general expression
would be sufficient to show that the King would have no
right to the property in question, were it situate in Eng
land. But to this Mr. Jefferson gives a most conclusive
answer : In towns, the whole bank and beach being ne
cessary for public use, the private right of alluvion would
be inadmissible. How does it happen, then, that in every
city in the United States the shores and wharves are
private property, except in the cases where the legislature
or the King may have granted them to corporations, in
which cases they possess and use them as individuals?
If they were necessary for public use, they could never
be private property ; if the private right of alluvion were
inadmissible, it would never exist. But necessary, in
Mr. Jefferson s vocabulary, means useful, and the public
means those who administer its affairs. Whatever, there
fore, is useful to promote the popularity of the Presi
dent, is necessary to the public; and it is in this sense
164* LIFE OF EDWARD LIVINGSTON.
only that his allegation can be reconciled to truth. The
question of the right of alluvion to town-lots has arisen
and heen decided in the United States. The lands were
situated in Newburyport, and the case is reported in
Tyng s Massachusetts Reports, vol. iii. p. 353, Adams
versus Frothingham. It was decided according to the
common law of England, not by virtue of any State reg
ulation ; and the judgment affirmed the right of alluvion
to the proprietor of a town-lot.
" But the whole body of American judges are pro
scribed ; their decisions are no rule for Mr. Jefferson.
6 Special circumstances, he says, ; have prevented atten
tion in America, either to the law or the breach of it.
What those circumstances are which would make learned
and upright judges neglect the law, or enlightened magis
trates disregard the interests of the public, he has not
deigned to explain. But, be it so. American decisions
shall pass for nothing ; there are no bounds to my com
plaisance for my adversary ; everything shall be yielded
to him ; titles in Louisiana shall be decided by the laws
of England, not as those laws are understood in the
United States, as they are expounded by the ignorant
men who preside in their courts, but as they flow from
the fountain-head in good old England itself, and not
even there as they are given to us by such inaccurate writ
ers as Blackstone or Coke, who deal in general princi
ples, but we will look for decisions, and those relating
not only to land, but to land in a city ; nay, more, to
land in a port ; and, to bring the case still nearer home,
to a beach which is covered, not once every six months,
but twice every day, with the water, not of a river, but
of the sea, and on which ships, not Kentucky boats, ride
at anchor. Thus far I shall be enabled to go, but I can
didly confess I can get no farther; and if it should be
THE BATTURE CONTROVERSY. 155
objected to me that my property is chiefly loam and vege
table soil, and that, in the case I cite, the soil was sea-
sand, that my alluvion was produced by fresh water,
and the English one by salt, or any other distinction
equally important should be raised, I confess that I must
give up the cause in despair, and avow myself vanquished
by the superior resources of my opponent. Let us, how
ever, do what we can," etc.
Some animadversions of Mr. Jefferson upon the sup
posed dangers of Mr. Livingston s enterprise are thus
met by the latter :
" This leads to the fourth head of defence, which
supposes the property mine, but alleges an use of it in- Q\yW
consistent with the laws of the Territory. The docu
ments to which I have before referred show how ill-
founded is this charge. But suppose it true, what jus
tification does it form for Mr. Jefferson s interference \
" He has shown that if I were guilty of these attempts
to drown and poison the city, there were laws not only
to punish, but restrain me. The ancient and modern pro
visions he has cited authorize the judge, on the com
plaint of any individual interested, to issue his injunc
tion against the erection of the work.
" He has not only cited the law, but shown that pro
ceedings were had under it ; he has told the public that
my works were presented by a grand jury as a nuisance.
Why was not that presentment followed up and tried \
I could then before a jury of my country have shown
the falsity of all these charges. If they were true, a
verdict, which could have been had in ten days, would
have put a stop to my aggressions as effectually as the
mandate of the President, and I believe every one will
allow, with rather a greater attention to the forms of
law. That a President of the United States is required
166 LIFE OF EDWARD LIVINGSTON.
or even authorized to watch over the police of the rivers
or the cities in the Territories ; that he is to abate the
nuisances in the suburbs of New Orleans, and determine
the proper height and extent of the levees in the Mis
sissippi ; that he is to guard against the accumulation
of the putrefying mass with which I was to raise up
the foundation of my embankment, appears to me rather
derogatory to his station and incompatible with his other
duties. I had thought that they fell within the province
of a high constable or a scavenger ; that the first magis
trate of our nation had certain duties assigned to him
by the Constitution, which he was to perform without
interfering with the internal regulations of Territories and
States ; and that when he was authorized to ask the opin
ion of the great officers of the government, it was not
intended that he should degrade them by deliberating
on the propriety of filling up a mud-puddle or pulling
down a dike in New Orleans.
"^Nec Deus intersit nisi dignus vindice nodus, Do not
let Jupiter appear until his thunders are necessary is a
maxim, true as well in the common prose transactions
of real life, as in the fictions of poetry. If my works
were a nuisance, a court of quarter-sessions, with its
sheriff its constables, and parish jury, was a much more
appropriate machinery, than the President of the United
States, assembling the council of the nation, drawing out
its military force, and launching his thundering mandate
at my unprotected head.
" There is a real or affected ignorance of the first prin
ciples of our government which runs through all this
division of Mr. Jefferson s argument, that is degrading
to the author in the first hypothesis, insulting to his
readers in the second. The bed of the river and its
shores belong, says his argument, to the public. The
THE BATTURE CONTROVERSY.
sovereign is the guardian of this public right; and though
the soil of the bank may belong to an individual, it is
the duty of the sovereign to take care that this right of
private property yield to the public use. To this point
he has cited Domat, p. 60. But in our government
who is the sovereign I The executive head of the fed
eration I or the local government, the State or Territorial
sovereignty. No man who understands the first rudi
ments of our Constitution can hesitate on these questions.
Again, of the local government, which branch ] Every
infraction of a public right is a public offence, and all
these are to be punished by the intervention of the Ju
diciary, a branch wholly distinct in our government from
the Executive, but which Mr. Jefferson has confounded
with it in his principle, and has degraded by his prac
tice.
" The Territorial government, for all the purposes of
domestic rule, is as distinct from and as independent of
the General Government, as is that of the States. By
the Ordinance of 1787? which at the period of the trans
action formed the Constitution of the Territory of Orleans,
there was a governor with executive power, a legislative
council and house of representatives, with authority
to make laws in all cases for the good government of
the district, not repugnant to the Ordinance, or Consti
tution, and a judiciary regularly organized. In short,
a local government complete in all its parts, excluding
as much any interference of the Federal Government, as
those established in the States. The care, then, of all
these public rights in the Territory of Orleans belonged
exclusively to the proper branch of the local government,
and the interference of the President of the United
States was as unconstitutional under that pretence as it
would have been in New York or Massachusetts ; and
168 LIFE OF EDWARD LIVINGSTON.
he might as well order the Marshal to call out his
posse to destroy the weirs and floating nets in Hudson s
River, or to cut down the wharves that project into its
channel, he might as well, I repeat, order the demoli
tion of Long Wharf, and direct the garrison of the Castle
to hold themselves in readiness for another Boston Mas
sacre, in case of resistance. He would he quite as jus
tifiable in doing this as in doing what he has done; and
he might use the same arguments with as much force
in the one case as in the other.
" That the right of interference resided in the Territo
rial, not in the General Government, is in effect acknowl
edged by our author himself, who tells us that surely
it is the territorial legislature which not only has the
power but is under the urgent duty of providing regu
lations for the government of this river and its inhab
itants, etc. In the same page he tells us that the
governor and cdbildo (municipal council) seem to have
held this pretorian power in Louisiana, as well as that
of demolishing ivhat was unlaivfully erected;* and that
the act of the legislature, without taking the power from
the governor and city council, gives a concurrent power
to the parish judge and jury, etc. Here we have an
express acknowledgment, nay, more, a strong desire to
establish a right in the Territorial legislature to make
laws on the subject in dispute, and in the Territorial ex
ecutive to carry them into execution, not only to pre
vent the erection of any nuisance, but to demolish it if
erected. If, then, this right both to legislate and execute
was vested in the local government, what excuse has the
President of the United States for his interference ? In
what part of the Constitution does he find this concur
rent right \ What confused ideas, then, I repeat, must
that man have of government who believes in this jus-
THE BATTURE CONTROVERSY.
tification ! What contemptuous ideas of the people to
whom it is addressed must he entertain, who, knowing
its fallacy, thinks he can impose it on their understand
ings !
" But supposing my works a nuisance, and the Presi
dent of the United States to have the power to abate
it, has he done so 1 Is that the act of which I com
plain I Neither the one nor the other ; his order is
not an order to demolish my works, to fill up my canal,
to pull down my house, but to remove ME from the pos
session of the landl and this was accordingly done ;
the canal which was to poison the city by its pestilential
vapors was suffered to remain, and is resorted to at this
day, although nearly choked up for want of cleaning and
repair, as a more commodious and safe harbor for boats
than any other near the city. The levee that projected
into the river, and was to sweep away the town and
country in undistinguished ruin, was not demolished by
this vigilant abater of nuisances ; it was left to the opera
tion of time to effect. The house which impeded the
navigation of the river and interfered with the public
right to its banks, was transferred to the possession of
the city of New Orleans, and for several years was oc
cupied as their guard-house. So that, if the facts alleged
in Mr. Jefferson s justification be true, and it was his
duty to abate the nuisance, he has totally neglected it ;
he has suffered the nuisance to remain, but has dispos
sessed the owner of the land on which it was erected.
a new mode of procedure, and somewhat inconsistent
with that eager desire to destroy these dangerous works,
with that active zeal which could brook no delay to con
sult the forms of law. The truth is, that this idea of
the abatement of a nuisance is a complete afterthought,
never alluded to in the act or in any of the early stages
22
170 LIFE OF EDWARD LIVINGSTON.
of justification, suggested now by a faint hope to elude
fair inquiry, and made of such stuff as are the arguments
of a Newgate solicitor in defence of a felon caught in
the manoitr. To hide the threadbare weakness of this
argument, it is glossed over with a mock-heroic decla
mation, in which pestilence and fever, death, destruction,
ruin, and inundation, frighten the reader in every line,
and in which he has reproached me with being afraid
of submitting my cause to a jury. Mr. Jefferson re
proaches me with this ! he whose constant care has
been by demurrers, by pleas to the jurisdiction, by every
device that chicane could invent, to avoid this species
of investigation ; he whose steady phalanx of friends in
Congress defeated every attempt to submit the cause to
any species of trial ! He utters this reproach to me !
who for five years have been constantly engaged in the
painful, unavailing task of solicitation for this or any
other trial. Such an insulting disregard to propriety
and truth forces me from the moderation with which I
wished, injured as I have been, to conduct the contro
versy ; and the close of the passage now under review
is calculated to inspire sentiments not only of indignation,
but of horror.
" My life had been more than once threatened for ex
ercising my legal rights. Emboldened by the idea of
executive protection, excesses were committed in my case
which the love of order natural to the people of Louisi
ana had in every other instance avoided. The good sense
of the people had got the better of this temporary
frenzy ; the necessity of submitting to the laws was
perceived and acknowledged. Mr. Jefferson s friends
must have informed him that these ideas began to pre
vail, and that if by a decree of the court, or in any other
legal manner, I should recover my possession, there were
THE BATTURE CONTROVERSY.
171
now no hopes that I should be deprived of it by a mob.
This was a prospect too mortifying to be endured ;
the people must be excited, the spirit of 1807 mu st
be revived, and though the danger never existed, though
if it existed it was long past, it must be painted in glow
ing colors, the vengeance of popular fury must be
directed at my head ; an expression in one of my letters
which, it was thought, would render me odious to the
people, must be culled with malignant care ; their con
duct in opposing the laws must be spoken of with com
placency, while mine in daring to complain is held up
to the severest animadversions ; and when by these arts
a proper spirit is supposed to have been excited, they
must be plainly told, that though their laws will not allow
them to burn me alive, it is a punishment mild enough
for my offence ! ! *J\LA rfl
" What was to be done, says Mr. Jefferson, with $10^
such an aggressor ] Shall we answer in the words of
the imperial edict \ Let him be consumed with flames
in that spot in which he violated the reverence of an
tiquity and the safety of the empire / let his accessaries
and accomplices be cut off] etc. Our horror, he adds,
is not the less because our laws are more lenient. I
ought perhaps only to laugh at the folly of this rhapsody,
and remind the author that the flames were prepared by
the Roman law for the destroyers of the dikes of the
Nile, not for the one who erected them, I ought to
ask him good-naturedly to look at the title of his own
law, and determine which of us deserved the stake. But
I confess that the mirth naturally excited by the ab
surdity is somewhat repressed by horror at the wicked
ness of this attempt.
" On these facts and on this law, the late President
says, We were called, and repeatedly and urgently called,
LIFE OF EDWARD LIVINGSTON.
to decide. As I do not suppose a republican magistrate
could assume the ridiculous expression of royalty, by
speaking in the plural number, I must suppose that he
has fallen into it by reflecting on the various capacities
in which he was thus urgently called on to act. As leg
islator, he was to make a new law to fit the circum
stances of the case ; as judge, he was to apply it to
those facts, which, as a juror, he was to ascertain, and
to pronounce that sentence, which, as executive officer, he
was himself to carry into effect ; as President, he was
to reclaim the lands of the United States ; as Command-
er-in- Chief of the armies, a sufficient military force was
to be prepared to overawe opposition ; as Mayor of the
city of New Orleans, he was to enforce its rights against
the decrees of the court ; as high constable, he was to
abate nuisances, and as street commissioner to remove
the putrefying mass that threatened the health of the city.
We ought not to be astonished that an officer who thought
himself obliged to act in all these capacities should speak
as if he were more than one, nor that, having in this
instance invested himself with all the characteristics of
despotism, he should have assumed its style."
The following is part of Mr. Livingston s review of
Mr. Jefferson s account of the cabinet deliberations and
\- decision to act in the matter :
" The task, then, undertaken by the President and his
counsel was a judicial one in the strictest sense of the
word, and they applied themselves to it with some de
gree of form. A preliminary question to be decided by
a court inquiring into a case is, By what rule are we to
decide 1 What law is to govern the case 1 And we
accordingly find that this was the first object of attention
with our new tribunal. The first question occurring,
says Mr. Jefferson, was, What system of law was to be
THE BATTURE CONTROVERSY. IJS
applied to them "? They adopt the laws of France, and
then they, or Mr. J., (for it does not clearly from his
style appear which,) reason through forty pages upon the
law and the fact, and having clearly settled both in their
own minds, they are convinced of the guilt of the ac
cused, and we have the important inquiry in the criminal
cause : What was to be done with such an aggressor \
Having, with a humanity for which I can never be too
grateful, determined that though he richly deserved it
they would not burn him alive, they proceed to declare
what sentence shall be passed on the civil side, or, to give
Mr. Jefferson s words, The question before us was, What
is to be done I What remedy can we apply authorized
by the laws, and prompt enough to arrest the mischief 1
The points of law and of fact determined by this tribu
nal are then resumed and stated with precision, and we at
length come to the decree, which is thus rendered : On
duly weighing the information before us, which, though
not so ample as has since been received, was abundantly
sufficient to satisfy us of the facts, and has been confirmed
by all subsequent testimony, we were all unanimously
of opinion that we were authorized and in duty hound,
without delay, to arrest the aggressions of Mr. Livingston
on the public rights and on the peace and safety of New
Orleans, and that orders should be immediately despatched
for that purpose, restrained to intruders since the passage
of the act of March 3d. *
" Here is the sentence, and I am mistaken if a more
formal one ever received the sanction of a court.
* The act of Congress here re- public lands from encroachments by
ferred to, and which Mr. Jefferson the class since called "squatters,"
relied upon as a distinct ground of and its passage was several months
justification for his measures against before the question of title to the
Mr. Livingston, was a general stat- Batture was presented to the gov-
ute (Chapter XLVI. of the laws of ernment.
the session) designed to protect the
LIFE OF EDWARD LIVINGSTON.
; First, we are told that they duly weighed the infor
mation before them, and though, to be sure, it was not
so ample as has since been received, yet it was abun
dantly sufficient to satisfy them of the facts. Here, then,
is a decision in form of the facts in the case.
" But, lest any doubt should be entertained of the juris
diction of the court, an elegant pleonasm is introduced to
mark this feature strongly, and show that no doubts were
entertained, at least by the judges, on this subject. We
were all unanimously, says the classic Jefferson, c of opin
ion that we were authorized and in duty bound to arrest
the progress of Mr. Livingston. Here the offender is
pointed out, and his double aggression distinctly marked:
he is found guilty of offences against the public rights and
the peace and safety of the city of New Orleans. This is
the conviction ; in the sentence, I confess, there is more
obscurity than I should have expected from the pen of
the enlightened chief of the tribunal. Orders, it is said,
should be immediately despatched for that purpose, (name
ly, to arrest the aggressions of which I had been found
guilty). What those orders were, in what manner the
evil was to be arrested, does not appear by the record ;
they had confidence in the President, perhaps, and left
this to his discretion ; but the obscurity is cleared up
by the execution which immediately followed the sen
tence. It consisted of an order from the Secretary of
State to the Marshal, to remove all persons from the
Batture who had taken possession since the 3d March,
1807. The civil power is to be first employed, and in
case that should prove insufficient, the Secretary at War,
another member of the court, orders the military force to
carry it into effect. The sentence was executed; and the
unfortunate offender, thus legally, fairly, and constitution
ally condemned, was reduced from affluence to poverty,
THE BATTURE CONTROVERSY.
175
from the prospect of independence to a life of solicitation
and labor."
In point of dignity and temper, the private citizen, in
discussing what he regarded as an enormous personal
injury to himself, maintained throughout his argument
a clear advantage over the late chief magistrate, giving
a voluntary account of his management of a high gov
ernmental trust. The latter, in his paper, frequently
stepped aside to indulge in such irrelevant assertions
as that Mr. Livingston was " an eagle-eyed adversary,"
a "greedy individual," governed by "the delusions of
self-interest, " one who " could not suddenly forget the
flesh-pots of Egypt, even in the new land of Canaan;"
that he was engaged in "an atrocious enterprise," and
was leniently dealt with if not bufnt to death ; that his
claim was " too frivolous to occupy the attention of Con
gress," - and the like. His adversary, on the contrary,
through all the sarcasm and severity of his answer pre
served a steady pertinence to the subject of his complaint,
and adhered to the forms of politeness in dealing his
heaviest blows. With regard to the new land of Canaan,
he declared that he knew as little of its flesh-pots as the
late President seemed to do of its laws. " But," he
added, " I think that when searching the Scriptures for
unmeaning allusions, Mr. Jefferson might have discov
ered some precept to arrest him in the unholy career of
first oppressing a fellow-citizen whom he was bound to
protect, and then adding mockery to his other outrages."
While his claim was before Congress, he had, on the eve
of an adjournment, as a last means of securing attention,
addressed a circular letter to the members of that body,
in these words :
"Sir: The peculiarity of my situation will justify me
LIFE OF EDWARD LIVINGSTON.
in renewing to you, individually, the appeal which has
repeatedly been made to the honorable body of which
you are a member. Without entering into any other
circumstances of my case, thus much is without dispute :
that without trial or any judicial process, I have, by
military force, been driven from the possession of a real
estate of which I was the bona fide purchaser, for a val
uable consideration, from a person in possession, and
under a title recognized to be good by the sentence
of a competent tribunal, judging in the last resort ;
that I am an American citizen, and have never done
anything to forfeit the rights to which that quality en
titles me ; and that the United States being in possession,
I have no remedy at law.
" Whether the law of 1807 authorizes the proceedings
against me or not, or whatever were the motives of those
proceedings, my case is equally one of primary public
concern, and is that of every individual in the commu
nity, for no one has any legal security which I had not.
If the law authorizes such proceedings, it is unconsti
tutional ; if it do not authorize them, the misconstruc
tion ought to be remedied. I might, therefore. Sir, with
out presumption, claim that interference, as a matter of
the highest public duty, which, in my present situation,
I am content to solicit as a private favor. Deprived of
a fortune that would place me in a state of independence,
I am, by the act of the government, reduced to poverty,
and exposed to the pursuits of creditors, whose patience
will, I fear, be exhausted by further delay ; twice obliged
to leave my profession and place of abode, my means
are exhausted, and my business lost. Under these cir
cumstances, Sir, I am persuaded that you will not suffer
the trifling inconvenience of a few hours delay to balance
the utter ruin of a fellow-citizen, who cannot trace his
THE BATTURE CONTROVERSY.
misfortune to any imprudence of his own, and who only
asks that fair trial which the Constitution you have sworn
to defend secures indiscriminately to all.
"Eow. LIVINGSTON.
" 23d June, 1809."
This manly and pathetic appeal the ex-President, in his
pamphlet, condescended to make the topic of a jest, which
lacked the poor excuse of being pointed. " A most un
grateful complaint," it runs; "for had he not been re
moved, he must at the time of writing this letter have
been, as his estate was, some ten or twelve feet under
water, the river then being at its greatest height." To
this Mr. Livingston responded by setting out the letter
in full, and appending only the following commen
tary :
" If there be any man who can join Mr. Jefferson s
merriment at the terms of this letter, I do not envy that
man s enjoyments, and would much rather be the suf
ferer under the wrongs there detailed, than the one,
however high his office, who could first inflict and then
deride them."
. Every argument and suggestion of his antagonist re
ceives distinct notice in the answer of Mr. Livingston.
Whatever fact or inference he cannot claim to be in his
own favor, he admits with a dry and robust candor.
He approaches a conclusion in the following sen
tences :
" The task I had imposed on myself is now finished,
and I commit, with satisfaction, my cause to the public.
It is not one of mere interest, either to me or to my ad
versary : as he has managed it, the question involves
considerations of higher moment to us both : I am an
intruder on the public, or he an invader of private rights.
23
LIFE OF EDWARD LIVINGSTON.
The only true inquiries were, Was the land in question
the property of the United States 1 Had the President
a right to seize it if it were 1 A dignified defence would
have been confined to the support of an affirmative answer
to these propositions. Innocence would have rejected 1
the doubtful advantage to be derived from even a just at
tack ; integrity and honor would have disdained the aid
of unjust accusations, however plausible ; magnanimity
would have scorned the effect of an appeal to popular
prejudice ; but in this case we look in vain for these
results."
Here follows a swift and close recapitulation of the
main points of the answer, which ends thus :
" I now take my leave of Mr. Jefferson. In my an
swer, I have confined myself to his book. Notwithstand
ing the strong temptations which assailed me almost in
every page, I have strictly kept within the boundaries
of a just, (and, I think, considering the wanton attack,)
a mild defence. My future conduct will depend much
on that of my adversary. I shall continue to reply to
every argument that may be addressed to the public on
this subject. Knowing that my cause is good, I do not
despair, even with humble pretensions, to make its jus
tice appear. For this purpose, I have always courted
investigation ; I should have preferred it in a court of
justice, but do not decline it before the public.
" Though some may condemn me only on hearing the
name of my opponent, there are many, very many, in
the nation who have independence enough to judge for
themselves, and the ability to decide with correctness ;
to such I submit the merits of a controversy which has
been rendered interesting as well from the constitutional
as the legal questions it involves, and on which Mr. Jeffer
son has, by his management of it, staked his legal, his po-
THE BATTURE CONTROVERSY.
litical, and almost his moral reputation. That he should
not have understood the nature of my title and the dif
ferent foreign codes on which it depends, is no reproach;
that he should have acted at all without this knowl
edge must surprise, that he should have acted forcibly,
must astonish us ; but that he should persevere in the
same pretence of understanding the law of France better
than gentlemen bred to it from their childhood, and who,
engaged on the same side of the controversy with him
self, have abandoned the ground he has taken, that he
should obstinately justify an invasion of private property,
in a manner that puts it in the power of a President
with impunity to commit acts of oppression at which
a King would tremble, that he should do all this, and
still talk of conscious rectitude, must amaze all those
who look only to the reputation he has enjoyed, and who
do not consider the inconsistency of human nature, and
the deplorable effects of an inordinate passion for popu
larity."
To show the habit of Livingston s mind in searching
for illustrations pertinent to the subjects which occupied
his attention, I may relate this anecdote. His answer to
Mr. Jefferson having been finished and retouched with
care, during one of his visits to the east, the manuscript
was given to the printer on the eve of his departure for
home. His journey was by stage-coach through Penn
sylvania to Pittsburg, and thence by the rivers. The
task of revising the press he left to the kindness of a
friend, Mr. Du Ponceau, of Philadelphia. To the latter
he wrote, on reaching Pittsburg :
" How will this note do to that part of the work which
refutes the idea of the land covered by the inundation
being the bed of the river ? It escaped me when I was
with you.
180 LIFE OF EDWARD LIVINGSTON.
" Although I do not think the poets the very best
authority in a juridical controversy, nor am I disposed to
imitate Mr. Jefferson, when he quotes lines out of St.
Evremont to prove the legal signification of a French
term, yet Virgil has, in one line, so distinctly marked
the difference between the bed of the river and the fields
which it inundates, that I cannot resist the temptation of
quoting the passage :
" aut pingui flumine Nilus,
Quum refluit campzs, et jam se condidit al*veo."
J*ENEID, 1. 9, v. 31. "
The suggestion was attended to by Mr. Du Ponceau,
and the Virgilian citation appeared in the work, along
with the other authorities which the author had brought
together in support of his various positions.
The passages above transcribed are but so many bricks
which fail to convey any adequate notion of the archi
tecture of the work from which they are taken. That,
to be appreciated, must be read with the paper which
called it forth. Of it the learned editor of the periodical
in which both productions appeared together declared,
at the time, that " to us it appears to be one of the most
masterly performances that ever came from the pen of a
lawyer or scholar in any country." And this strong
praise the learned reader of the present day will not think
excessive or injudicious.
At the period when these arguments were published
fifty years ago it was not easy, as it now is, to draw
a general popular attention to such questions as they dis
cuss, and the public to which they were really addressed
was a more select one composed more exclusively of
professional and learned persons than the public to
which similar appeals would at present be made. Thus
the conduct of Jefferson on this occasion escaped in a
THE BATTURE CONTROVERSY.
good degree that universal notice and exposure which,
in our clay, it would have been sure to receive. But the
recognition which was accorded to Livingston by some
of the best and first men of his time, both as to his
rights and his manner of asserting them, must have
formed at least some compensation for the wrong he had
suffered. The following letter he received from his
former fellow-student, then Chief-Justice of the State
of New York, soon afterwards its Chancellor, and finally
the Blackstone of American law :
"Albany, May 13, 1814.
"DEAR SIR : Your favor of the 9th ult. was just now
received, and I am sensible of the honor done me by the
value which you are pleased to attach to my legal
opinions. On all questions depending on the civil law my
researches are very imperfect, and I know that you are
infinitely my superior ; and if I had any doubt of your
title to the batture after reading Jefferson s pamphlet,
your reply had completely removed it. I purchased the
reply as soon as I heard it was to be procured, and be
fore the one you was so kind as to intend for me came
to hand, and a more conclusive argument I never read.
Permit me to assure you that I have sympathized with you
throughout the whole of the controversy, as I took a very
early impression that you was cruelly and shamefully per
secuted, and that, too, by the executive authority of the
United States. I am more and more confirmed in this
opinion, and Mr. Jefferson has richly merited all the
reproach and indignation which your pamphlet conveys.
I never doubted in the least (it would have been impos
sible) that his interference summarily under the act of
Congress was unauthorized; but as I read but once his
book on the title, and did not examine his authorities, but
182 LIFE OF EDWARD LIVINGSTON.
assumed them to have been fairly cited, I was left in
perplexity and doubt, and had not leisure to sit down to
a reexamination of the subject. When your reply came,
I read it eagerly, and studied it thoroughly, with a re-
examination of Jefferson as I went along; and I should
now be as willing to subscribe my name to the validity of
your title and to the atrocious injustice you have received,
as to any opinion contained in Johnson s Reports. This
last pamphlet is the ablest work with which you have
hitherto obliged the public, and it gives you new and
increasing claims to their consideration.
" I always recollect, with pleasure and tenderness, the
friendship of former days, and I cannot omit any oppor
tunity to assure you of my constant esteem and regard.
" I am, dear Sir,
" Yours, sincerely,
" JAMES KENT.
" EDWARD LIVINGSTON, Esq."
The student of our political history cannot learn from
even the most voluminous of Mr. Jefferson s biographers
that he ever committed any act of such practical and
thorough despotism as we here see that he did, and it
may be difficult for ardent youthful admirers of the il
lustrious teacher of democracy to believe the fact. Yet
no fact can be more certain than that the complaint
of Mr. Livingston was, in substance, altogether well
founded and true. It would require but few such acts
to make even the name of Jefferson stand in history
for a character such as Livingston was tempted, in an
eloquent passage of the work just considered, to de
pict him, " the magistrate of a free people, playing the
Tartuffe of liberty, adoring it in theory, but in prac
tice violating its most sacred principles." The truth is,
THE BATTURE CONTROVERSY. 183
that Mr. Jefferson, throughout his tract, now published
with his works, betrays a sensitive desire to convince
himself that he had not, in this instance, done scanda
lous violence to the great principles of which he is the
popular exemplar ; and if he had succeeded in this en
deavor, he would not, a few years later, have entertained
nor testified the exalted respect for his adversary, proofs
of which will be recorded further on.
CHAPTER IX.
DISAPPOINTMENT AND AFFLICTION.
Temper of Mr. Livingston Condition of Affairs, caused by the De
votion of his Time to the Batture Enterprise Anecdotes A Scrap of
Translation Anxiety to end the Separation from his Children Letters
of Julia Her Death Letters to Lewis The latter joins his Father.
MR. LIVINGSTON S temper proved itself perfect,
throughout the controversy with Jefferson. That
he felt, as keenly as any man could feel, the vexation,
disappointment, and sense of injury involved in the treat
ment he received, is made clear by his part in the public
discussion of the case. But his private demeanor was
not disturbed by the struggle for a single moment. There
was no gall in his heart, and no wormwood in his speech.
In his family and among his friends, not a bitter word
towards his principal adversary, or towards the more
contemptible enemies who assisted in the work of thwart
ing him on this occasion, ever escaped his lips.
If he could have foreseen the tedious course of the
litigation, and have chosen to abandon this property al
together and rely upon his other more regular resources,
his pecuniary independence might, with good manage
ment, have been speedily accomplished. But this specu
lation promised at first such brilliant results, that the
unexpected opposition he met gradually stimulated his
exertions in defence of his rights, till his best energies
had been devoted to the case so long, that, when the war
broke out between the United States and England, in
18 IS, the question was yet in the courts, and his prin-
DISAPPOINTMENT AND AFFLICTION. 185
cipal debt was still unpaid. His resources for paying it
were paralyzed by the war. Money became scarce ; his
property could not then be disposed of, and even ordinary
professional business was much interrupted. No course
was left to him but to continue, indefinitely, his labor and
his patience.
All his life, Livingston was accustomed to long, daily
walks, usually solitary. At this period, the close of
the day was the hour he habitually set forth, and the
levee was the accustomed place. One evening he was
stopped by a man, in a rustic dress, who asked him if
he was Mr. Livingston.
Yes."
" I thought so. I have come to ask you to lend me
a doubloon."
" Lend you 1 "
" Yes, it will be returned."
" But, why that precise sum 1 "
" Less would not serve my purpose, and more I don t
need."
Having the money in his pocket, Mr. Livingston
handed the coin to the stranger without further ado. The
latter, as cool in his thanks as he had been in his request,
went his way, saying,
" Good night. If I live you will hear from me again."
The above incident had long been forgotten, when one
morning, two years afterwards, whilst Mr. Livingston
was sitting at breakfast with his family, a stranger was
announced, who walked straight up to the table, and plac
ing upon it a shining doubloon, proceeded to explain :
" I see that you don t recognize me. I am the man
you saved from ruin by lending me this amount two
years ago. I owned a flat-boat ; it had sunk with
all its contents, and I was left penniless. I knew no one
24
186 LIFE OF EDWARD LIVINGSTON.
here, and had no means of getting back to Kentucky.
I calculated that it would take just that sum to carry me
home. Had I not heen ill, you would have seen me last
year. But I am here now, and everything has prospered
with me since we met."
He was asked what had induced him to. think of Mr.
Livingston in his distress I He replied, " Well, I can t
tell exactly, only I came from Livingston County, in Ken
tucky, which was named in honor of the author of the
speech on the Alien bill, and, having had you pointed out
to me as the same man, I thought I had more claim on
you than on any one else."
From another of these walks he returned home com
pletely drenched. His, family, in surprise and alarm, ex
claimed that he looked as if he had been in the river.
" So I have," said he, laughing heartily. "As I was walk
ing on the levee, I amused myself watching the progress
of a little canoe crossing the river, with a solitary man
rowing it. Suddenly, from some imprudent motion,
the boat pitched on one side, and the man fell into the
water. Evidently he could not swim. I threw off my
coat, jumped in, got hold of the man just as he appeared
to be sinking, and brought him to the boat, which was
righted. He seized the side, and, clambering in, rowed
off without looking at me, I suppose because I had not
been properly introduced to him, and I was left to
find the shore as best I could, which, loaded as I was
with clothes and boots, was not so easy a matter."
A memorandum-book for the pocket, which Mr. Liv
ingston carried in 1809 and 1810, contains, so far as I
know, the latest of his attempts at poetical composition.
He seems to have been by this time, and probably long
before, convinced that though he had always loved and
appreciated the poets, the art of lyrical writing was not
DISAPPOINTMENT AND AFFLICTION.
among his own gifts. The attempt to which I now refer
is a paraphrase of the beginning of the fourteenth ode,
second hook, of Horace. It consists of only six lines,
and closes abruptly with an unfinished sentence. The
following is the whole of this fragment :
44 Ebeu ! fugaces, Postume, Pos turned
" They fly, my friend, they swiftly fly,
These days we pass so sweetly ;
In vain doth worth, doth virtue try
To make them pass less fleetly.
" Wrinkles and age, dear Dan, they bring,
Disease and death, the care of all "
The critical reader will perhaps think that he judged
rightly in reserving for compositions of a very different
species the perseverance of which a striking illustration
is hereafter to be given.
During this epoch his anxiety to be reunited to his
children increased from year to year. Julia was approach
ing womanhood, beautiful, accomplished, and amiable,
and he was debarred from witnessing her daily progress.
But his correspondence with her was constant. I have
now before me a package of her letters, written to her
father in 1810 and 1811. Some of them enclose letters
to her step-mother, written in French. Towards her
father, they breathe a love and respect almost idolatrous.
In one of them, dated at Philadelphia, she says, " The
principal reason, I believe, of my being so pleased with
this city, is because almost every one here speaks of you
in such high terms, and appears to take so much interest
in your welfare. And, now, adieu, my dear, my be
loved father ; believe me that I love you most truly, most
tenderly ; that my whole heart is yours, except one cor
ner of it, which is devoted to the memory of her who
alone had an equal share with you in the affections of
your Julia."
138 LIFE OF EDWARD LIVINGSTON.
The mind and person of this child were impressed with
a peculiar delicacy and a certain melancholy which al
ways seemed to foreshadow an early decline. The soli
citude of her father on this account became anxiety in
the winter of 1813, and, in the following summer, alarm.
In August, the account he received of her he considered
as a summons to New York, if he would see her again.
The voyage was rendered uncertain and dangerous by
the state of the war. He embarked, however, by the
first opportunity, on board a schooner which narrowly
escaped capture, and, after an unexpectedly tedious pas
sage, arrived safely at New York, about the middle of
October. He hastened, with an anxious heart, to the
house of his brother in Greenwich Street, though he was
aware that the family were at their country-seat on the
Hudson. After hurriedly inquiring about the family
of the servant who opened the door, he asked, " How is
Miss Livingston I " The servant, not knowing who he
was, replied, " She was buried, Sir, yesterday." The
tender father staggered under the blow, and carried its
visible traces, not only upon his sad, returning journey,
but for a long time afterwards. In his first interview
with his wife and child on reaching home, he could
scarcely speak of his grief, and convulsive sobs were
mingled with the few words he uttered upon the subject.
He shortly afterwards wrote to one of his sisters :
" Do not, I entreat you, think me wanting in that
affection I have always borne you, from my not writing
you since my arrival. I can only trust my pen on sub
jects of business, and I strive to confine my thoughts
to the same object. The bustle of my profession keeps
me from a retrospect to which if I were to give way,
I should lose myself forever."
He now felt an absolute necessity for the companion-
V
({1
DISAPPOINTMENT AND AFFLICTIO
ship of his son, a youth in all respects worthy of his
tion and care. The latter had returned before 1810 to
New York, having lived several years at the American
legation in Paris. Possessing a manly character and a
precocious mind, his letters and the accounts given of
him by his friends had inspired his father with proud
anticipations for his future. The course of his studies
received constantly the paternal attention and advice.
But so distant a supervision of one so dear could not
satisfy the heart of the parent. In May, 1812, the
latter had written :
" My dear boy, should I be disappointed in coming
out this summer, by war or other accident, it is my in
tention that you should join me in the fall, by the way
of the Ohio and Mississippi. I shall find some friend
to accompany you, who is coming that way ; you shall
pass the winter here ; in the spring we all return to
gether, and from that time we shall not part any more.
I learn with great pleasure, my dear son, that all your
relations are pleased with your manners and your progress.
Do they flatter me when they say so 1 I hope not ; I
believe not ; if they do, it depends only on you to make
their flattery truth."
I here transcribe in full three letters of the father to
the son, written at this period :
LETTER NO. I.
"N. O., 26th July, 1812.
" Your letter, my dear boy, of the 1st of June is just
received, and it gives me some uneasiness to find that
none of those I had written to you before that have come
to hand. Of two I had sent since, one has been returned
to me, as the vessel was stopped at the Balize by the
declaration of war, and the other is probably taken.
190 LIFE OF EDWARD LIVINGSTON.
Our communications in future must be altogether by land ;
and if the Indians should commence hostilities, even this
will be a very precarious conveyance, for you know, I
suppose, that in order to arrive here by land we must pass
through several tribes of Indians. This circumstance
will, I fear, prevent our meeting as soon as I expected.
In the present state of things, I do not choose that you
should come to me as I intended, nor can I with safety
visit you. We must therefore indemnify ourselves by
greater punctuality in our correspondence for the mis
fortunes which continue to separate us.
" All the accounts I receive from your relations are such
as I wish. They speak highly of your conduct, your
deportment, and your diligence. Continue, my dear
child, to deserve the approbation of your friends, and you
will become what it is my first wish you should be, a
well informed, and, above all, a good man. Preserve a
rigid, an inflexible regard for truth : it is the foundation
of almost every virtue. He who always tells the truth
can neither be a knave or a coward. The reputation
of always adhering to it gives a respectability which nei
ther riches nor talents can procure ; whereas he who has
unfortunately acquired a contrary character can neither
be esteemed, loved, or trusted. Let me hear, then, when
we meet, that you have never been known either from
fear or any other motive to have disguised the truth, and
I shall embrace you with double delight.
" I sent on some weeks since to your uncle C. a sum
of money, out of which I desired him to pay you fifty
dollars. It is my intention that you should dispose of
this sum exactly as you think proper, with or without
the advice of your friends. Every six months you shall
have the same amount, so you may regulate your expenses
accordingly.
DISAPPOINTMENT AND AFFLICTION.
" But you are by no means and on no occasion to bor
row any money, or in any other way to make any debts.
This direction I hope you will scrupulously attend to, not
only now but throughout life.
" Your letter was fortunately fifty days in corning to
me, or the prophecy of your man from the state-prison
would have thrown us into consternation. The fourth
of June passed away quietly ; and if two thirds of the
world were then destroyed, we inhabit the favored part.
" Farewell, my beloved son ; may Heaven bless and pre
serve you.
" EDW. LIVINGSTON."
LETTER NO. II.
" N. O. t i4th September, 1812.
" I have just received, my dear son, your letter of the
15th of August. The last post brought me another.
I am well pleased with the frequency of your letters, and
with the letters themselves. Your hand is already very
well formed, and your style will become more easy and
elegant every time you write. Frequent translations will
also have that effect. You cannot yet, I suppose, enter
into the beauties of any of the Latin authors. As soon
as you can, select one of the passages which pleases you
most, and make a free translation of it. This, I suppose
you know, means giving the same idea which your author
expresses in different words, whereas a literal translation
preserves the very words of the original. In the mean
time, pursue the same course in the French and English
languages, taking your favorite author in each, and se
lecting the passages which strike you most. Rollin is a
very good book to impress facts upon your mind, but I
would not have you copy his style, especially in the
English translation ; I would have preferred your getting
LIFE OF EDWARD LIVINGSTON.
it in the original ; and, since you are making a collection,
I advise you never to purchase, or even read a translation,
if you can get the original. I want to know your taste.
Dp you read poetry or prose with most pleasure I and of
poetry which do you like best, the French or English ?
Which is your favorite author 1 Let me know all this
when you write, and particularly what is your course of
study and the division of your time. I cannot repeat to
you too often that method is as important as applica
tion. Have a fixed time for each study and pursuit, and
do not let them interfere with each other. You are at
an age now, when, with an ardent desire to learn, you
may make yourself master of anything. Without this
you will never learn anything, for I do not call learning,
getting a slight, parrot knowledge of any subject or
science. Learn what you undertake thoroughly ; never
be content while there is any one who knows more of it
than yourself; and remember you are to do this yourself.
The best masters can only point out the road, you
must travel it yourself ; they may, indeed, remove diffi
culties that might otherwise stop you, but, after all,
they cannot carry you, you must march through on
your own legs. I enclose letters from your mamma and
little sister ; the latter entreats that you will answer with
out delay. It is her very first effort, and she would be
dreadfully mortified if you were to neglect her. God
bless you, my dear boy !
" Most affectionately yours,
" EDW. LIVINGSTON."
LETTER NO. III.
" March, 1813.
" MY DEAR SON : I learn with very great affliction of
the death of your cousin H. and the increased illness of
DISAPPOINTMENT AND AFFLICTION. 193
your uncle.* They are calculated to teach us that neither
youth, talents, or fortune, can secure happiness here. The
innocence and filial affection of the one has already secured
to him that reward which the many virtues of the other
will prepare for him whenever he is taken from us. I pray
Heaven, that, notwithstanding appearances, this may be
long deferred, and that he may yet live to multiply those
good acts and services to his country which have endeared
his name to all those who wish its prosperity. The dif
ficulties and dangers of travelling by land have increased
so much that I must defer my return until the steamboats
are established from this up the Ohio. The one employed
from here to Natchez will make the experiment in about
a month. Should her voyage succeed, of which I have
little doubt, I shall take passage in her on the second
trip in the month of August. My movements, however,
will be very much influenced by the news I hear from
Washington. At any rate, my dear boy, most decidedly
you must be with me w r herever I am next winter ; my
life wastes away at a distance from my children, and
I may die before they have known me. I receive from
everybody accounts which highly gratify me of your
character, attention, and behaviour. Continue, my dear
child, to deserve these praises, and to merit new eulo-
giums. Strive to merit more than to receive them. Esse
quam videri is a good motto, but in the end they amount
to the same. Sooner or later the world will find us out ;
our good qualities and talents will be admired, our
faults and vices exposed, whatever care we take to conceal
them ; and we shall appear what we really are whenever
the veil is torn off, That of merit is modesty ; that of
vice, hypocrisy. Wear the first always, the worthy
know what treasures it conceals ; the last is subject to
* Chancellor Livingston.
25
194* LIFE OF EDWARD LIVINGSTON.
be drawn aside by a thousand accidents, and the vile fea
tures beneath it are exposed to the derision of the world.
" When your sister arrives in the country, as I suppose
she will shortly after this reaches you, go and spend some
days with her. There is no reason why my children
should be separated from each other, although I am forced
to be so from them. Farewell, my dear son ; receive the
blessing of your affectionate father,
" EDW. LIVINGSTON."
The plan of bringing Lewis to New Orleans had not
been carried out before the melancholy visit to the North,
as these letters show, and the affairs of Mr. Livingston
would necessarily keep him yet for some time in Loui
siana. He therefore resolved to be separated from the
youth no longer, and took him to New Orleans on his
return. It resulted that the education of the latter was
varied by an active participation in the stirring events
of the close of the next and beginning of the following
years, the memorable campaign for the defence of New
Orleans.
CHAPTER X.
THE BATTLE OF NEW ORLEANS.
Mr. Livingston s Services in the Campaign His Qualifications His
previous Acquaintance with General Jackson Meeting of Citizens in Sep
tember, 1814 Appointment of a Committee of Safety Address of the
Committee to the People Successful Defence of Fort Bowyer Procla
mations by Jackson His Appearance and Reception in the City His
Intimacy with Livingston Contrast and Concord between them Mul
tifarious Services of the latter during the Campaign Proclamation of Mar
tial Law Gallantry of the young Lewis Dangerous Service in the
Night-battle of December 23d Pleasantry under Difficulties Rejoicings
in the City after the Decisive Repulse of the Enemy Influence of Liv
ingston in Jackson s Military Councils The Lafittes The Draughting
of Reports, General Orders, Addresses, etc. Despatch of Colonel Living
ston to the British Fleet to negotiate an Exchange of Prisoners His De
tention and Return to the City with News of Peace Arrest of Judge Hall
under Martial Law Subsequent Arraignment of General Jackson for Con
tempt of Court Defence of the latter prepared by Livingston Minia
ture of Jackson presented by him to his Friend Project of a Life of the
General Mutual Attachment established between him and Livingston.
THE detention of Mr. Livingston at New Orleans,
so long deprecated by him as we have seen, en
abled him, in this celebrated campaign, to render services
to his country the most opportune and the most signal.
Indeed, there was no other man on the spot at all quali
fied for the very comprehensive work which he then per
formed. His knowledge of the people and of the situa
tion was complete. His influence was extended among
all cjasses. His judgment was cool, while his patriotism
was wrought up so as to command all his energies and
all his resources. Besides, he knew and was known
to General Jackson ; for, as has been already partially
196 LIFE OF EDWARD LIVINGSTON.
shown, when they had been, eighteen years before, fel
low-members of Congress, the one a polished orator,
representing the principal city of the Atlantic coast, the
other an unfashionable figure from the wilds of Ten
nessee, they had been political brothers and friends.
In the first place, Livingston perceived afar off the
danger of invasion which threatened the city, and took
active steps to awaken and prepare the people. Of this
there was much need ; because the very mixed population
of the city, though loyal and patriotic at heart, were yet
indolent, incredulous, and occupied with local contentions.
On the 15th of September a meeting of citizens as
sembled, at which he presided and delivered a speech,
producing a thrilling effect, and offered a series of reso
lutions, affirming a faithful attachment to the govern
ment of the United States, a full faith that the coun
try was capable of defence, and a determination to
risk lives and fortunes in defending it. The resolutions
were adopted by acclamation ; and the meeting proceeded
to appoint a committee of nine, " to cooperate with the
constituted civil and military authorities in suggesting
means of defence, and calling forth the energies of the
country, to repel invasion and preserve domestic tran
quillity." Of the committee, Mr. Livingston was made
chairman.
The " constituted civil authorities" referred to in the
resolution were even more sluggish than the people at
large in comprehending the public danger, and were
specially engaged in paltry squabbles, unworthy even of
politicians, in the absence of a better employment. Of the
negative qualities of the Governor, Claiborne, Mr. Liv
ingston had good reason to be aware, as we have seen.
The committee immediately issued an address drawn
up by Mr. Livingston to the people of the State. It
THE BATTLE OF NEW ORLEANS. \Cfj
was a concise and stirring appeal to the sentiments and
motives of every class ; and its effect was profound and
pervading. The exertions of the committee were active
and continued. On the 21st of the month, and the mo
ment of receiving news of the successful defence of Fort
Bowyer, at Mohile Point, it resolved on presenting " a
sabre, with a suitable inscription and proper emblems,"
to Major Lawrence, the gallant and skilful commander
of the garrison, whose obstinate bravery had achieved
that important victory. Two clanging proclamations of
General Jackson one to Louisianians, the other to the
free colored people of the State immediately followed;
and these events and appeals excited the people to a high
pitch of loyalty, confidence, and unanimity.
Jackson had received his appointment as Major-Gen-
eral in the army of the United States in the previous
month of May. He was now at Mobile, sternly resolved
to defend the Southwest from invasion. With him
Livingston corresponded, furnishing him with maps and
information during the interval until his arrival, on the
2d of December, at New Orleans. At the head of his
committee, and in company with the Governor and other
authorities, he was among those who first welcomed the
General on his entrance into the city. The formal ad
dress was made by the Governor. General Jackson s
response briefly expressed a fierce determination to save
the city, and a confident demand for the unanimous aid
of the citizens in the task. His words fell without their
proper effect upon most of the ears present, because the
latter were unfamiliar with the English language. "This
address," says Walker, "was rendered into French by
Mr. Livingston. It produced an electric effect upon all
present. Their countenances cleared up," etc.
The same day the General dined at the house of Mr.
198 LIFE OF EDWARD LIVINGSTON.
Livingston, and during the remainder of the campaign
the two were almost inseparable. In their general traits
and qualifications two men could scarcely be more un
like ; but the contrast was such as to produce between
them a most perfect accord at all times, and especially
in the emergency which had then brought them together.
Mr. Livingston served as aide-de-camp, military secretary,
interpreter, orator, spokesman, and confidential adviser
upon all subjects. He furnished an opinion in writing
on the question of martial law, justifying its proclama
tion in case of a clear necessity, but not favoring the
step in any other event. This opinion retarded, for a
few days, the adoption of the measure; but on the 15th
of December, it was foreshadowed in an eloquent proc
lamation of the General, drawn up by Livingston, and
on the following day, martial law was declared.
Mr. Livingston did not omit the opportunity of allow
ing his only and beloved son to pass through the lessons
and perils of the situation. Under date of the 16th of
December, the youth wrote to his aunt, Mrs. Mont
gomery :
" General Jackson arrived here about a fortnight since,
and I have been all this time with him, visiting the dif
ferent posts. He has promised to receive me into his
staff . To-morrow I am to have my appointment as en
gineer, with the rank of Captain or Lieutenant, I know
not which. Great bustle but little alarm now prevail in
town. We daily expect the enemy to make an attack
upon this place. We are ready, however, to receive them.
All the militia are now doing duty, and will leave town
in a few days, and all do it with pleasure ; they vie with
each other in showing their zeal. There now reigns
but one party; all are determined to oppose the enemy;
and even my father, seized with a patriotic or military
THE BATTLE OF NEW ORLEANS. 199
ardor, has offered himself, and has been received as vol
unteer aid to General Jackson. The martial law was
published this morning, and is now in execution. But
I am writing a newspaper, not a letter."
The place assigned to the youth was that of assistant-
engineer under Major Latour, afterwards historian of
the campaign, with the rank of Captain. He bore
himself bravely. On the 6th of January, his father wrote
proudly to Mrs. Montgomery : " Lewis has been in two
actions, and has behaved with the utmost gallantry."
And he gained the honor of being praised by name
along with the chief engineer, " for talents and bravery,"
in general orders, at the .close of the campaign.
On the 18th of December, Sunday, General Jackson
reviewed all the troops in the city, upon the public square.
The whole population was present, and contributed all
in its power to give eclat and brilliancy to the display.
It was, considering its materials, a most successful and
inspiriting pageant. At its close, Livingston, standing
near the Commanding-General, read before the troops and
the assembled multitude, in tones never forgotten by those
who heard them, an address which moved the enthusiasm
of every class. It was a most timely and skilful appeal
to all the leading sentiments and motives of a motley
population, Americans, Frenchmen, Spaniards, Ger
mans, and men of color. It was a masterpiece of elo
quence, and stirred to its depths the patriotic spirit of
the whole multitude.
The fighting soon commenced. Throughout the cam
paign, Livingston, in addition to his other manifold tasks,
constantly performed the dangerous duties of aide-de-camp.
In this capacity, on the evening of the 23d of December,
he went on board the Caroline, and explained to Com
modore Patterson General Jackson s plan for the com-
200 LIFE OF EDWARD LIVINGSTON.
bined attack upon the British force, encamped at Villere s
plantation. In the night-battle which followed, he was
much exposed while carrying the General s orders on
horseback in all directions. His bravery on this occa
sion was particularly acknowledged by Jackson, in his
official despatch reporting the engagement ; and, in the
general orders at the close of the campaign, dated the
21st of January, it was declared that " the General s aides-
de-camp, Thomas L. Butler and Captain John Reid, as
well as his volunteer aids, Messrs. Livingston, Duncan,
Grimes, Duplessis, and Major Davezac de Castera,*
the judge-advocate, have merited the thanks of the Gen
eral by the calm and deliberate courage they have dis
played on every occasion and in every situation that
called it forth."
Livingston s love of pleasantry was perpetual, and did
not forsake him even in the midst of the cares and
dangers of a position to him so novel. Mr. Nolte, a
merchant, was one of his clients, and had joined one of
the volunteer companies of the city to aid in its defence.
When the experiment of using cotton bales for filling
redoubts was adopted by Jackson, a quantity belonging
to Nolte was first taken from a vessel in the stream which
was ready for sailing at the time the British fleet ap
peared. Nolte, on recognizing his property thus used,
complained to Mr. Livingston, declaring it to be an
outrage to take his cotton, which was of the best qual
ity and already shipped, while there was plenty of a
much cheaper sort to be had in the suburbs. " Well,
Mr. Nolte," said Livingston, " if this is your cotton, you
at least will not think it any hardship to defend it." f
* The brother of Mrs. Livingston, t Nolte relates this anecdote in
afterwards sent by President Jackson his book entitled Fifty Years in both
as charge d affaires of the United Hemispheres. I should not repeat
States at the Hague. it on the testimony of this lively but
THE BATTLE OF NEW ORLEANS.
At this exact period his letters by every post to his
sisters at the North reveal the fact that he was laboring
under something like a presentiment concerning his own
fate. His farewells in these letters were more tender
than usual, and on the 6th of January he wrote to Mrs.
Montgomery :
" The service is dangerous, and we have lost many re
spectable citizens ; but the survivors are animated with
a glorious spirit, and if we fail, the enemy will not find
us an easy conquest. Farewell, my dear sister ; the
chances are now greatly increased against our meeting.
Assure all my relations to whom I cannot write, that I
love them very affectionately."
But both father and son escaped all harm. Lewis,
the boy-captain, in the following passage of one of his
letters to Mrs. Montgomery, dated February 2, described
the fete, and triumph which greeted the victorious army
on its return to the city. I transcribe it, for its fresh
ness, from the original letter now lying before me :
" Was there ever a finer sight, or a more affecting
one, than that which presented itself to our view on
the 23d ultimo, when the main body of the army, mostly
composed of fathers of families, returned, with their brave
and modest leader, General Jackson, at their head, amidst
the acclamations of an immense multitude of old men,
women, and children, (the only ones who did not share
in the dangers of the field,) who all hailed them as the
saviours of their country and themselves ?....
" On the 24th, the General, accompanied by all his
staff, proceeded to the Cathedral, where a grand Te Deum
was to be sung. On the public square, facing the build
ing, was erected a triumphal arch. On both sides of
most mendacious writer alone. It Orleans, not long after the campaign,
is confirmed to me by the memory and of course, many years before
of those who heard the story at New Mr. Nolte s volume appeared.
26
LIFE OF EDWARD LIVINGSTON.
this, a few steps back, were stationed our best-looking
troops ; and in front of these, nearest to the arch, were
to be seen eighteen young ladies, dressed in the same
apparel, and each representing one of the States. In the
middle of the arch there were two little children, stand
ing on two thrones, erected on both sides, between the
columns of the arch. Each held a crown in her hand :
General Jackson easily found out who they were for ;
his modesty suffered, but he was obliged to submit. He
passed through the arch and was crowned, amidst the
huzzas of the Americans, and acclamations of the French,
who did not cease to repeat, Vive Jackson ! Vive notre
General !
After the decisive battle of the 8th of January, Gen
eral Jackson felt a strong inclination to follow up the
victory by attacking the enemy in his position ; and he
had nearly resolved upon doing so, when a council of
officers was called to consider the plan. At this council,
Mr. Livingston bearing the temporary and for him
odd title of Colonel was the first to speak in oppo
sition to the scheme, as too full of needless hazard. His
views, seconded by General Adair, prevailed with the
Commander-in-Chief, who, after hearing these two ad
visers state their opinions with great clearness and force,
determined upon the more prudent course.
The vehement Commander-in-Chief yielded, on more
than one occasion during the short campaign, to prudent
suggestions made by his friend, and in one important, if
not vital matter, suffered the same mild influence to over
rule a judgment into which he had prematurely rushed,
but to which he had distinctly committed himself. In
one of the two proclamations already mentioned, to the
people of Louisiana, which he sent forward from Mobile,
in September, and before he had come to rely upon Liv-
THE BATTLE OF NEW ORLEANS.
ingston s pen for the composition of such papers, he
had referred to an attempt of the British commanders
to " court an alliance with pirates and robbers," and to
their having- made offers to " the pirates of Barataria,"
whom he characterized as " a hellish banditti." These
" pirates of Barataria " were a company of smugglers
and outlaws, ruled by Jean Lafitte, who had extensive
dealings with the privateers then ranging the Gulf of
Mexico, under commissions from their Christian majesties
of England, France, and Spain, on the one hand, and
on the other with the merchants of New Orleans. The
character of Jean Lafitte, of his brothers Pierre and
Dominique, and of their band, was better understood by
the people of New Orleans and by Mr. Livingston than
by General Jackson. Early in September, Colonel Nich
ols, of the British army, had made an earnest overture
to Jean Lafitte to tempt the latter and his Baratarians
to join in the invasion of Louisiana. Lafitte, feigning
a willingness to comply, but declaring that some time
and some mystery would be necessary for making his
preparations, immediately divulged the overture to Gov
ernor Claiborne and the legislature, and calling himself
a stray sheep, anxious to get back into the fold, offered
to devote himself and his followers to the defence of the
country, if their services should be accepted, with an as
surance of amnesty for their past conduct. The Gov
ernor and legislature hesitated ; but the communication of
Lafitte becoming known at once awoke many citizens,
including Mr. Livingston, to the peril impending over the
city ; and the public meeting, with the appointment of
a committee of safety, on the 15th of September, was
the immediate consequence. The offer of Lafitte met with
no official response until martial law was declared, and
Jackson was, practically, dictator. Then the leader of
LIFE OF EDWARD LIVINGSTON.
the " hellish banditti " presented his proposal to the new
power. He was supported in the application by the fa
vorable representations of many official persons and pri
vate citizens. The Commander-in-Chief was not easily
convinced. But the calm and confident opinion of Liv
ingston prevailed in favor of the Baratarians. They
were accepted, formed two companies of artillerymen,
fought bravely and faithfully, and earned, what they re
ceived, a distinct acknowledgment in the General Orders
of January 21st of their right thenceforward to the " sal
utation of Jackson s brothers in arms."
Livingston illustrated his own willingness to trust the
Lafittes, by committing to one of them the execution of
an arrangement which he made for the safe removal of
his wife and child, in case of the success of the enemy
in getting to the city.
The draught of the General Orders of January 21st,
in the handwriting of Livingston, carefully corrected by
erasures and interlineations, according to his unvarying
wont in all serious compositions, still exists. The only
difference between the draught and the document as pro
mulgated is, that in the former there is no reference to
the conduct of any of the General s staff, or to that of
the juvenile Captain Livingston, an omission which,
as we have seen, the Commander-in-Chief supplied.
The busy pen which laboriously distributed in this
paper, entitled General Orders, the honors due to the offi
cers and divisions of the little army of defence, produced
also, on the same day, an address which was read, by
Jackson s direction, at the head of each of the corps com
posing (he line, recapitulating in stirring phrases the
chief events of the campaign. After describing the
battle of the 8th of January, this paper continues:
" And this glorious day terminated with the loss to the
THE BATTLE OF NEW ORLEANS.
enemy of their Commander-in-Chief and one Major-Gen
eral killed, another Major-General wounded, the most
experienced and bravest of their officers and more than
three thousand men killed, wounded, and missing ; while
our ranks, my friends, were thinned only by the loss
of six of our brave companions killed, and seven disabled
by wounds. Wonderful interposition of Heaven ! Un
exampled event in the history of war !
" Let us be grateful to the God of battles, who has
directed the arrows of indignation against our invaders,
while he covered with his protecting shield the brave
defenders of their country.
" After this unsuccessful and disastrous attempt, their
spirits were broken, their force was destroyed, and their
whole attention was employed in providing the means
of escape. This they have effected, leaving their heavy
artillery in our power, and many of their wounded to
our clemency. The consequences of this short, but de
cisive campaign are incalculably important. The pride
of our arrogant enemy humbled ; his forces broken ;
his leaders killed ; his insolent hopes of our disunion
frustrated ; his expectation of rioting in our spoils and
wasting our country changed into ignominious defeat,
shameful flight, and a reluctant acknowledgment of the
humanity and kindness of those whom he had doomed
to all the horrors and humiliation of a conquered
state.
" On the other side, unanimity established ; disaffection
crushed ; confidence restored ; your country saved from
conquest, your property from pillage, your wives and
daughters from insult and violation ; the Union pre
served from dismemberment; and, perhaps, a period put
by this decisive stroke to a bloody and savage war.
These, my brave friends, are the consequences of the
06 LIFE OF EDWARD LIVINGSTON.
efforts you have made, and the success with which they
have been crowned by Heaven."
We have seen that the duties undertaken and per
formed by Mr. Livingston, during this campaign, were
of the most multifarious description. One of the la
bors specifically intrusted to him was that of looking
to the strict security and proper comfort of the prison
ers captured and carried to the city after the battle of
the 23d of December, including the wounded in the
hospitals.
On this occasion, his goodness of heart moved him to
the irregularity of sending a badly wounded English
officer, whom he found insensible, to his own house,
where he was carefully nursed till he recovered. The
importance of preventing the passage of the least commu
nication from the prisoners to the British camp was at
that moment so vital that Jackson could not have tolerated
such a proceeding in any other man then near him ; but
he appears to have quietly sanctioned the step, relying
implicitly upon the discretion of him whose unmilitary
impulse had led him to take it.
On the 4-th of February, Mr. Livingston, in conjunc
tion with Captain White and R. D. Shepherd, Esquire,
was despatched by General Jackson, with a flag of truce,
to negotiate with Admiral Cochrane and General Lam
bert an exchange of prisoners. These officers were, at
the moment of his arrival at the fleet, on the point of
sailing in order to make a second attack upon Fort
Bowyer, at Mobile Point. The concealment of their
design was deemed by them so important that they took
the extraordinary precaution of carrying him and the
officers who accompanied him to Mobile Point, where
he witnessed, on the 12th of the month, the surrender
of the fort. He had chafed much under the detention,
THE BATTLE OF NEW ORLEANS.
and had vigorously protested against it in writing sev
eral times. He was treated with great personal con
sideration hy all the British officers, and he bore them
much personal good-will in consequence. To Admiral
Cochrane, who, during this interval, expressed his desire
to possess a copy of Wilson s celebrated work on the
birds of America, he on his return sent his own copy
of that book. Cochrane and his fellow-commanders
had been particularly delicate in avoiding any expression
which might possibly wound the patriotic sensibility of
their guest and temporary prisoner.
On the 13th of February, the day following the sur
render of Fort Bowyer, the commandant of the British
fleet received official information of the fact that Great
Britain and the United States had signed a treaty of
peace. Hearty mutual congratulations were exchanged
between the British officers and the Americans on board;
and Livingston, now bidding adieu to his compulsory
entertainers, on the 19th reached home, where his un
expectedly long absence had begun to cause much anx
iety, bearing the first news of peace, news the official
confirmation of which was eagerly looked for. till it at
length reached General Jackson on the 13th of March.
It was during the interval of twenty-two days between
Livingston s return from the British fleet and the arrival
c*
of official information respecting the treaty of peace, that
Jackson, by retaining the city under martial rule, ex
cited the discontent of a portion of the people, from
which resulted the attempt by Judge Hall, of the Fed
eral court at New Orleans, to examine judicially the va
lidity of the proceeding, an attempt ending in the
summary arrest and banishment of the Judge himself.
The next day, a copy of the treaty of peace, forwarded
by the Government from Washington, reached the Gen-
08 LIFE OF EDWARD LIVINGSTON.
eral, who immediately resigned his extraordinary powers
into the hands out of which he had taken them. On his
arraignment before the court, a few days later, for con
tempt, he did not appear by any counsel, but Captain Reid,
of the regular army, his aide-de-camp, offered to read to
the court a defence of the proceeding which had been
taken against the Judge. The reading of the paper was
not permitted. I have seen the draught of this defence,
an elaborate and respectful statement and argument,
in the handwriting of Mr. Livingston, much erased and
interlined, according to his habit. How much, if any,
of the deference to law and its tribunal which Jackson
happily manifested on this occasion was owing to the
wise influence of his now principal adviser, the reader, as
well as I, can judge.
Before leaving New Orleans, General Jackson sat for
his miniature, painted on ivory, which he presented to his
friend, with an expression of the sentiments which in
spired the gift, written upon a slip of paper inserted in
the frame, as shown in the engraved foe-simile * accom
panying this volume. This portrait, as will be seen,
bears very small resemblance to the several likenesses
all taken much later by which the inflexible features
of Jackson are imprinted indelibly upon the popular
mind.
On the 10th of April, Livingston wrote to his sis
ter :
" We have just parted with our great and good Gen
eral, and his departure has left a gloom on every coun
tenance, and a void in every heart, except a few who
envied his glory, or did not dare to partake in his dan-
* This engraving, the work of Mr. is a both spirited and minutely close
Ritchie, is of the same size as the representation. The painter of the
miniature, with its case, of which it picture was a French artist, M. Valle.
THE BATTLE OF NEW ORLEANS.
gers. I have been with him from the time of his arrival,
and am proud to think that I obtained his friendship and
confidence. He presented me, on his departure, with a
picture, which I shall leave as an honorable memorial to
my son."
Two letters, in my possession, dated, one in April, the
other in June, 1815, written by Captain John Reid, the
regular aid of Jackson, who accompanied him for some
time after his departure from New Orleans, and who
was afterwards brevetted Major for gallantry in the
campaign, show that Mr. Livingston, to whom they
were addressed, then entertained a plan of writing a
biographical notice of the General.* They show also
that the search for materials was not fruitful, which is
the probable explanation of the fact that the projected
work was not, so far as I can discover, actually com
menced. The materials which were collected for it were
finally used by Reid himself in the work which, after
his death, was finished by General Eaton.
* The first of these letters was as questions on this subject as you may
follows : wish answered, and address them to
Washington, M. T. mc . ? Ten nessee I will promise
" -,-, A-;I TT^ an d forward you the answers, with-
22 .r\pril, I5I5* ji r i_ i
out delay. It is by questioning alone
"MR .LIVINGSTON -Sir : Enclos- that w / shall be ^ to a f
ed I send you, by the direction of the facts in this man > s hij *
General, a short sketch of his lite. Respectfully Yr. Obt. St.
I wish it were more circumstantial. T^U^ p CT "
T 1_ 1_ T> JUHIN JVtlL.
Perhaps when we get to Tennessee,
and clear of these dinners, one more In the second letter, written at
to your liking may be forwarded. I The Hermitage, Captain Reid says,
have just got up from an overwhelm- " I am now at the General s, en-
ing dinner at this place, and have yet deavoring to collect the most cor-
to write what you will find enclosed, rect information respecting himself
A fine trim you will of course sup- and his achievements. From him I
pose me to be in for this purpose, can gather but little, nothing being
The General is just mounted and so irksome to him as to go into de-
gone on, having left with me a few tails about himself. As to his pa-
hints on a scrap of paper. Nothing, pers, I am diving into four chests -
he says, is so insipid and disagreeable full, not very well arranged, and
to him, as to sit down in cold blood expect to bring up something of
and write the particulars of his own value. I have made several grabs,
life. however, without catching anything
" 1 wish you would put down such but muddy leaves. "
27
10 LIFE OF EDWARD LIVINGSTON.
These two men, Andrew Jackson and Edward Liv
ingston, so utterly unlike each other in nature, culture,
and habit, and yet so adapted for mutual respect and
for working harmoniously together, had now met at two
different epochs of their lives, in circumstances calculated
to attract each to the other most powerfully. How dur
able the attachment so formed between them was, and
what an important influence it exerted upon the careers
of both, is still to be told.
CHAPTER XL
LEWIS LIVINGSTON.
Renewal of the Struggle for Pecuniary Independence Necessity of
again parting with Lewis Return of the latter to the North Letters
from Father to Son Labors of the former Progress of the latter s
Education His Successful Mission to Canada to procure the Remains of
General Montgomery Scene at Montgomery Place on the passing by of
the Escort, bearing the Hero s Ashes to New York Return of Lewis to
New Orleans Crisis in the Batture Litigation An Adverse Decision
Fortitude of Mr. Livingston His Services in the Legislature of Louisiana
Uneasiness on Account of the State of Lewis s Health Voyage of the
latter to Europe His Letters His Rapid Decline and Death Depth
of his Father s Grief.
MR. LIVINGSTON was now fifty-one years old,
and the burden which had oppressed his heart
for twelve years still clung to him. The Batture en
terprise, which had assumed the form of a lawsuit, with
many complications, had so far proved an ignis fatuus,
leading him out of his regular path only to disappoint
him. The opening of the courts in May following the
campaign which had for months occupied all his mind and
strength found him still toiling for subsistence, and still
hoping for the accomplishment of his independence. He
had no alternative but " to labor and to wait ; " and
bravely and quietly, though with secret sadness, he con
tinued the struggle. On the 10th of April he wrote to
Mrs. Montgomery :
" It is possible, but not certain, that we may pay you
a visit this summer. The old difficulty, that of money,
will alone prevent it. Our courts have been closed since
the invasion, and will remain so until next month. Should
LIFE OF EDWARD LIVINGSTON.
I be sufficiently successful to warrant the expense, I will
come on. I have a good chance, I think, now, of putting
down the opposition to my title ; and the return of peace
will restore the usual value to the property. This, if
the blessed day ever arrive, will enable me to do justice
and become independent. A few months will decide it."
But instead of a few months between him and " the
blessed day " which he had already waited for so long
and so wistfully, there remained yet an interval of years,
to be passed in patient labor and controversy, disappoint
ment, discouragement, and affliction. Certainly it is
one of the saddest sights in the world, to see a great
soul, to whose nature the love of money, in the ordinary
sense of the phrase, is as foreign as it is to childhood,
battling in vain with such a destiny.
The unhappiness of his situation was heightened by
the necessity of again parting with his son. The edu
cation of the latter could not be advantageously pursued
at New Orleans, and that his education should be of
the most thorough and the most practical kind was one
of the father s principal cares. The manliness and sense
of the youth had now inspired him with such confidence
in his principles and judgment that he resolved to send
him North, to depend on himself in the selection of his
teachers, the distribution of his time, and the management
of his purse, with such oversight only as he might- give
by correspondence, until he should be able, as he still
constantly hoped, to join him at New York. In the
spring following the campaign this plan was put in ex
ecution, and several years of separation followed. Their
correspondence was unremitted on both sides. Lewis,
in his first letter after reaching New York in April,
wrote as follows :
" I have been speaking a great while of myself. In
LEWIS LIVINGSTON.
this case I think it was necessary. Besides, I am writing
to my father, and I think Lord Chesterfield directs his
son always to break through the general rules of corre
spondence and make himself the theme of all his letters,
when writing to him. By the bye, do you know that
I not only see a great similarity in the style of your
letters and those of Lord Chesterfield, but also between
the two persons to whom they are written, two young
men promising much, but disappointing all. I say prom
ising, because, if I am to believe my friends, great ex
pectations are entertained. The utmost pains were taken
with Chesterfield s son, as they are now with me ; but
I fear that, like him, I shall bring forth no fruit. Dave-
zac used probably to be of this opinion, for in his merry
moments he was frequently in the habit of calling me
young Stanhope. But, however much I may resemble
him, I think I can promise that in some respects at least
the parallel shall not hold good."
Some pages will be here devoted to the preservation
of the following of Mr. Livingston s letters to his son,
written during this period :
LETTER NO. IV.
" N. O., July, 1815.
" You are by this time, my dear son, if my prayers
are heard, enjoying the society of your relations in the
land that gave you birth. I wish to heaven my affairs
permitted me to join you ; the time, however, may not
be far distant ; in the mean time we must submit to be
patient.
" I wrote to your aunt M. by last mail, and hope
she has received my letter. She has expressed most
affectionate intentions towards you, for which I am very
grateful ; but I hope her desire to increase your fortune
LIFE OF EDWARD LIVINGSTON.
may not induce her to forego any comfort or gratification
which her age or rank in society requires. I am sure
you will join in this wish, which I have urged to her,
and which you ought strongly to express yourself.
" You are now in a country where politics form the
principal, perhaps I may say with the exception of private
business the only topic of conversation. I wish to say
a word to you on this subject. No man ought, especially
in a republic, to be indifferent to the interest of his coun
try ; but there is a wide difference between feeling, and,
on proper occasions, expressing this interest, and that
noisy, intolerant zeal which disturbs society with ceaseless
disputes, and can suffer no opinion contrary to our own
to pass without contradiction. Unless the society of
New York be very much changed, it is very much in
fected with this fault. It is a great one, even when
committed by men whose age and standing in life entitle
their opinions to respect, and who naturally are irritated
when they are irreverently treated ; but it is intolerable
in a young man. Whatever examples, therefore, you
may see of this practice in your young friends, I hope
and expect you will not follow it. Yours is an age for
forming opinions, not for making proselytes. Those
which you do form will always be, I trust, consistent
with the principles of true liberty, without being influenced
by the false wit of young persons whom I have heard
ridiculing democracy and republicanism, not because they
had a predilection for one form of government over an
other, or indeed understood the principles of any, but
merely because they had imbibed a notion that it was
not gentlemanlike to be a Republican. For yourself, my
dear son, listen and read for some years, and you will
then be able to speak with better effect, as well as to think
with more precision, and even disputes, though gener-
LEWIS LIVINGSTON. 215
ally very irksome to those who are not engaged in them,
may become the vehicle of some information to you.
" Let me know whether your stock of Spanish and
of nautical knowledge is increased by your voyage.
" I do not know whether you went down the bayou
through which the British penetrated the country. I
visited it about a fortnight ago. It is a fine river, and
the road they constructed on its bank is still a good one.
I am convinced that the attempt to annoy them in their
retreat could not have succeeded. They were well for
tified at every turn.
" I enclose a letter left for you by Mr. Brown to
Mr. Monroe, and a plan given by Mr. Latour. He
goes on with his book,* and will go to Philadelphia as
soon as the translation is complete.
" I embrace you, my dear son, very tenderly.
" EDW. LIVINGSTON."
LETTER NO. V.
" N. O., ist of September, 1815.
" I have just received, my dear son, your letter of
the 29th July from Rhinebeck. I am very much pleased
to find that you are passing your time so agreeably among
your relations, but should have been gratified if you
could have had recollection enough to give me some
news of them. From your silence, however, I must
suppose them all well, and from what you say I may infer
that they are all happy. You do not even tell me where
you have established your head-quarters ; if at Mont
gomery, you would have mentioned your aunt . I am
glad you have General Jackson s letter, and still more
so that you view it in its true light as a stimulus to
* Historical Memoir of the War Latour. Translated by H. P. Nu-
in West Florida and Louisiana, in gent, Esq. Philadelphia, 1816.
1814-15. By Major A. Lacarriere
216 LIFE OF EDWARD LIVINGSTON.
further exertions. You are now at the very important,
the very critical period of life, when the reputation you
are to enjoy in future is formed, and when, unfortunately,
it is most difficult to impress a helief of that truth on
the mind. On your employment of the next two years,
perhaps on that of the present year, the present month, or
week, (for not even the smallest period of time is now
unimportant,) may depend your consideration and char
acter in future life. I do not mean that you are to spend
your whole time in study ; but what I seriously require
is that you make study of some kind, the acquirement
of some useful talent or agreeable accomplishment, your
principal object for the next three or four years. In the
mean time enjoy all the true pleasures of life ; see good
company ; profit by it ; become cited for your ease and
gentility of manner, for true politeness, (which is noth
ing but the practice of goodness in trifles,) as you may
be for learning and talents. I will take care to ease
you from any solicitude on account of finances. I have
no interest but yours, and I know that at your time of
life men are not very wise calculators. I hold this lan
guage to you, because I know that whatever I can afford
to allow you will not be spent in vice or extravagance.
" I will write to you soon on the subject of your re
quest to study at Philadelphia. There are great advan
tages attending it, and I believe, on the whole, it will be
best. But wherever you are, I bespeak an hour every
day for the Latin and Greek classics, one for Spanish,
another for French exercises, and a fourth for some
branch of the mathematics. The other twenty you may
dispose of in such way as you think most profitable and
most amusing. This, I am sure, is not unreasonable;
and wherever you are, even on a party of pleasure, four
hours each day may be taken in the morning or evening,
LEWIS LIVINGSTON.
and leave you all the time for amusement that can be
required. I mention particularly the Spanish, because
I have it very much at heart that you should be perfectly
master of it. Our connections with the Southern con
tinent are every day becoming more important, and in
whatever line you may be, a perfect knowledge of that
language will give you a most decided advantage. We
are all well, and love you affectionately.
" EDW. LIVINGSTON."
LETTER NO. VI.
" N. O.
" MY DEAR SON : I have just received your letter of
the 8th October. If I disapproved your conduct in
any particular, it must have been very slightly, for I
have already forgotten it, and cannot imagine to what
part of my correspondence you allude, which you say
made that impression upon you. I sent you by Mr.
Spencer three bottles of mineral water, from a spring
found on my lands on the Pass Christian on the margin
of the sea ; and from the imperfect analysis I have been
able to make here, it is found to contain sulphur and iron
in unusual quantities. One of them you may try your
own chemical talents upon ; give the others to Dr. Mitchill,
or any other celebrated chemist who will take the trouble
of making the analysis, and who will write me such an
account of the nature of the water as I may publish, if
I choose, with his name.
" In pursuing your classical studies, I would recom
mend an attentive perusal of Livy, and even a transla
tion of some of those passages whose beauty strikes you
most. Take, for example, the first twelve sections of the
9th book, and when you have made a translation of it
that pleases you, send it to me. I recommend Livy in
28
218
LIFE OF EDWARD LIVINGSTON.
preference to Tacitus, because I think it almost impossi
ble to render into any modern language the sententious
brevity of the latter, while I think the flowery style of
Livy may be imitated in English with some success.
" I interrupted my letter here that I might try by
experiment whether the opinion I hazard is just, and I
enclose, as a specimen,* the speech of Pontius from the
were conquered ? You gave hos
tages to Porsenna, and you meanly
stole them from his power ; you
ransomed your city from the Gauls,
and assassinated them while they
were counting the price. You prom
ised us peace to procure the libera
tion of your legions, and you break
that peace as soon as they are restor
ed. Never have you wanted a sem
blance of right to cover your want
of faith. Does Rome disdain to pre
serve her legions by an ignominious
peace ? Let her annul the treaty,
but restore the captive legions to
their conquerors ! This would have
been a duty in which the imperial
ceremonies might have been worthi
ly employed ; this would have ac
corded with their pretensions to good
faith and regard to treaties. As it
is, you have got all you expected by
the treaty ; your citizens are restor
ed safe to their country, while the
peace which was promised me as an
equivalent is not preserved. An
swer me, Cornelius ! Answer me,
Ambassador of Rome ! Is this your
public faith ? Is this your law of
nations ? As to these men you pre
tend to surrender, I neither receive
them, nor consider them as offered
to me. They are free ; let them re
turn to your city, loaded with the
weight of the stipulations they have
made, and with the anger of the
Gods whose name they have profaned.
Go, Romans ! Wage war upon us
because Sp. Posthumus has just
smote the Roman herald with his
knee ! Go ! persuade the Gods that
Posthumus is a Samnite, not a citi
zen of Rome, and that, because a
Roman herald has been assaulted by
* Translation from Livy enclosed
in the above letter :
" To this Pontius replied : I nei
ther accept the surrender, nor would
the Samnites confirm it, if I did.
But you, Posthumus, if you believe
in the existence of the Gods, either
abide by your stipulation, or let ev
erything be as it was before you made
it. Restore to the Samnites what
they had in their power, or give them
the peace for which they surrendered
it. But why address myself to you ?
you, who, with a mockery of good
faith, came to surrender yourself to
your conquerors. It is to the Roman
people I speak, and I call on them,
if they refuse the treaty of the Cau-
dine Forks, to replace their legions
in the toils where they were previous
ly entangled. There shall be no de
ception ; the treaty shall be annull
ed ; they shall receive the arms which,
pursuant to its stipulations, they sur
rendered ; they shall occupy the
same camp, and everything shall be
restored to them which, on the day
before the parley, they possessed.
After this, they may with propriety
resort to energetic counsels, and trust
to the fortune of war. After this,
if they choose, let them indignantly
reject all offers of surrender and
peace. On our part, we may then
carry on operations with the same
chance of success, and in the same
situation in which we stood before
they offered to capitulate. Then the
Romans cannot complain of the
terms imposed on their consuls, nor
we of the ill faith with which they
were violated. But have you ever
waited for a pretence for breaking
the engagements you made when you
LEWIS LIVINGSTON.
XI. section of the book I referred to ; it is nearly a
literal translation, and yet if I mistake not it might pass
for an original composition in English. Independently of
the heautiful language and elegant descriptive powers
of the author, this passage of history is a very remark
able one ; but the law of nations must have been a very
extraordinary one which would permit the historian to
doubt whether, by the offer to surrender their General,
the Romans were absolved from the obligations of the
treaty : Et illi quidem forsitan et publica sua certi
liberati fide, etc.
" In my last I requested the new distribution of your
time ; do not forget to send it.
" Yours, most affectionately,
" EDW. LIVINGSTON."
LETTER NO. VII.
" N. O., October ist, 1815.
" MY DEAR SON : Some vexatious business and a jour
ney I have been obliged to make have interrupted my
correspondence with you for some weeks. In the inter
mediate time I have received yours written before and
after your journey to the Springs, and previous to your
journey to Niagara. I very much approve of your
movements, particularly the last.
On the subject of your studies and your residence
it is time to come to some conclusion ; and in the reso
lution I have taken I give a proof of my confidence in
your prudence that would make many wise people doubt
my own. I will state to you what I wish and request
you to learn, and I leave to yourself the selection of the
a Samnite, the war you are about to tempt to deceive us by tricks which
wage is just. Do you not blush at would disgrace a boy ? Go, lictor !
this open mockery of religion ? Re- unbind these Romans ! let them de-
spectable by office and by age, are part unmolested. "
you not ashamed of this poor at-
LIFE OF EDWARD LIVINGSTON.
place in which it will be most practicable to obtain teach
ers and other facilities to carry my plan into execution.
" First, you know my desire that you should not only
be a good but an excellent scholar in the Greek and Latin
languages; one hour or more must be employed regu
larly every day, without exception or excuse from pleas
ure or other avocations, in attaining this, for the next
two years. If you continue thus long from duty, you
will persevere afterwards from inclination. Whatever
other studies you pursue, this must accompany them.
You are sufficiently advanced, perhaps, in this branch,
to proceed without much aid ; but I should prefer your
passing your allotted hour in company with the best pro
fessor of the languages you can procure ; it will make
you punctual in spite of yourself, and your studies will
be facilitated by the intercourse you must have with him.
During that hour, be a perfect pedant. Have no other
ideas but classical ones, and make it a practice to write
a short version of them every day. A few lines only,
if you put no interruption to your daily practice, will
in a short time give you an astonishing facility. I once
began this, but was foolish enough to discontinue it, and
have never ceased regretting my want of perseverance.
For this winter, your mathematical studies must be con
tinued with the greatest diligence. This is the great
groundwork of all science, and of most of the Arts.
Without a very considerable knowledge of them no
eminence is to be attained ; it is the handmaid to the
more showy acquirements, and abridges wonderfully the
labor of acquiring them, if indeed they are to be attained
without it. I do not speak of arithmetic; that is in
dispensable to every man, from the Secretary of the Treas
ury to the grocer at the corner ; and not to have a per
fect and easy use of figures is a reproach to the mean-
LEWIS LIVINGSTON.
est capacity ; connected with this, you will do well to
get some idea of the practical mode of keeping mer
chants accounts ; you will find it of great use in life,
particularly if you should choose the profession of the
law. Your Uncle C., or any other merchant with
whom you are intimate, will give you an idea of it in a
few days. What I particularly mean is algebra, trig
onometry, surveying, navigation, perspective, and the
other practical sciences to which it is applied. I do not
want you to discover the quadrature of the circle, hut I
wish you to be a good geometrician, and able to follow
or make any of the calculations that are usually found
iu books of science. In physics, you will find this of
the utmost consequence, and, indeed, most of the modern
books on this subject are nearly unintelligible to one who
is not an algebraist and geometrician. For the next
three months, therefore, I think you should divide your
time between the learned languages, mathematics, and
Spanish. This will occupy you four or five hours ; two
hours more for history, accompanied by geography and
the globes, will bring you to your dinner-hour, after which
I have nothing further to say to you till ten, except to
request that you pass your time in the best society in
the place where you are, the best informed men, the
politest and most fashionable women, but no carous
ing, no drinking-parties, no late suppers. You do not
love wine, you justly abhor play, and you have no taste
for bad company ; do not, therefore, let the fear of ridi
cule among a few idlers deprive you of the use of mo
ments so precious to your future prospects, to your hap
piness and that of your friends, as those which will make
up the next two years of your life.
" With all my confidence in you, my dear son, you
cannot conceive my anxiety. I am doing a novel and
LIFE F EDWARD LIVINGSTON.
a hazardous thing. I am trusting a young man, not
seventeen, to his own guidance, in the midst of the
temptations of a populous city. I give him no superior,
no monitor but his own sense of right. If you should
be seduced by dissipation, if you should disappoint my
expectations, what an eternal source of regret and self-
reproach ! No ! I shall never forgive myself, if you
are not everything I expect, everything I wish, that is,
a good, a moral, an honorable, an accomplished and
polite man. But though I cannot help feeling anxiety,
I have no real fears, and I proceed with my plan. Af
ter two or three months you may let your mathematics
give way three times a week to physics by attending a
course of lectures on them at the University. Astron
omy and chemistry may follow in succession, and in
the same manner. But do not confine yourself to the
attendance on the lectures ; get acquainted with and cul
tivate an intimacy with the several Professors ; talk to
them on the subject of their respective branches ; ask ex
planations, and get all the knowledge out of them you can.
You will find each of them fond of his science, and he
will be pleased with those who desire to excel in it.
" During this time you will pro forma enter your name
in the office of a lawyer, to save a year or two in case
you should choose the profession of the law, if at
New York, Mr. Hoffman or Mr. Golden will do me
this favor ; if at Philadelphia, Mr. Du Ponceau. As
to the choice of place, speak to Chancellor Kent, who
is my particular friend and a man of superior judgment
and learning, and after getting all the information in
your power as to the comparative merits of New York
and Philadelphia for your plan, take a room in a pri
vate family, and send me an estimate of what you will
want as well for your board, lodging, and tuition as other
LEWIS LIVINGSTON.
expenses, which I am willing should be such as are ne
cessary for a young man to appear in good society. By
this I do not mean a leader of the fashion, a beau, or a
pillar of public assemblies. The attendance on those
diversions which encroach on the night you will find
totally incompatible with such a steady pursuit of your
studies as I trust you will maintain. Early rising is
indispensable, and you will never attain eminence in
any of the pursuits allotted for you, if you suffer the
evening s amusements to encroach upon the morning s
studies.
" I give you no particular allotment of your time ; that
must depend in a great measure on circumstances, but
it will be extremely important for you to make a distri
bution, and to abide by it. If there is a good riding-
master, take a few lessons, and keep up your fencing.
Painting I know you will of course cultivate. When
you are fixed, let me know very particularly how you
divide your time. I shall send funds to your uncle C.
to provide for your expenses, to be paid quarterly in ad
vance. At present T presume $2000 per annum will
be sufficient; but I am not well informed as to the rates
of things in the United States. Therefore make your
own estimate, and if $500 more be necessary, it shall
be provided.
" I have spoken of your entering your name in a law
yer s office, in case you should choose that profession, for
it is absolutely necessary you should have one. Should
you have a fortune, it will enable you to preserve and do
credit to one ; should you have none, it will be neces
sary for your support.
" Farewell, my dear son ; we all embrace you ten
derly, and love you dearly.
" EDW. LIVINGSTON."
LIFE OF EDWARD LIVINGSTON.
LETTER NO. VIII.
" N. O., 29th December, 1815.
" MY DEAR SON: I have received yours of the 1st
of December, and am sorry that you cannot find accom
modations in a private house. The great number of
persons with whom you must necessarily associate in a
lodging-house will, I fear, interrupt the constant atten
tion which is now necessary for your studies. I say
now, because the events of the last year have not only
interrupted them, but have brought you forward be
yond your years, and led the world to expect more from
you than would be required from a young man of the
same age who had spent his time in retirement. This
ought, you will say, to be the reverse ; but the world is
not always just. You do not tell me in any of your
letters whether you have found proper instructors in
the different studies I have recommended, nor do you
give me your reasons for preferring New York to Phil
adelphia as the seat of your studies. All this I wish
much to know. There are some other points in my
former letters on which I asked for information, that
you do not notice in any of yours. This must arise
from your not having my letters before you when you
write to me. Unless you do this, you may write to
your correspondents, but you will never answer their
letters, and this is losing the best advantage of a cor
respondence.
" If only three years study in an office are necessary
to procure admission at the bar in New York, you need
not enter your name until you are eighteen, as you can
not be admitted before twenty-one. Inform yourself on
this point, and follow the advice of Mr. Golden, which
you will request him in my name to give you. Let me
know in your next what studies you pursue, who are
LEWIS LIVINGSTON.
your instructors, and exactly how you divide your time
between them. What society do you most frequent ?
Which are the houses you are most intimate in ? Have
you been introduced to the French emigrants of distinc
tion, of whom there are several, it is said, at New York ]
If any of them are coming this way, offer them letters
to me, saying that you are sure I will be ready to ren
der them any service in my power, and that I shall feel
great pleasure in their acquaintance, etc., etc.
" Farewell, my dear son ; we shall soon begin a
new year. You may make it a happy, by making it a
profitable one, and I have no doubt you will. Though
every succeeding revolution now drags me from the me
ridian of life, yet it raises you to it, and this is among
the greatest of my consolations. May you shine, when
you arrive there, with that true splendor, which virtue,
knowledge, and talent united, only can give !
" EDW. LIVINGSTON. *
LETTER NO. IX.
" N. 0., January i3th, 1816.
" MY DEAR SON : There will, I believe, be no neces
sity for your entering your name in a lawyer s office
until you see me, which I hope will be in the beginning
of the summer. Thank Mr. P. in your own name and
mine for his offer, but do not accept. I would advise
you to tell Governor Tompkins that you have consulted
me on the subject of the offer he was kind enough to
make to you of a place in his staff; that I have desired
you to say, I am very grateful for this mark of his atten
tion, but that I am solicitous your studies for one year
at least should receive no interruption, and therefore
request that, if the place requires any duties which would
interfere with them, he would defer the kindness he
29
LIFE OF EDWARD LIVINGSTON.
intends you for about that period, when you will de
vote a portion of your time to his service with pleasure.
Should he offer to give you the place without requiring
any service that will interfere with your course of study,
such, for example, as restraining it to attendance on gen
eral reviews in the city, I think there would be an ad
vantage in accepting it.
" I am glad Mr. Vanderlyn is returned, and should
be very well pleased to hear that you had prevailed on
him to give you some lessons. If you were sure of
obtaining his instructions or those of any equally cele
brated master in about a year, I should prefer your
postponing this study until you were perfect in another
which I think more useful, drawing, perspective, and
ground plans of buildings, fortifications, and machines,
all of which you will find extremely important through
life, and the last particularly in your study of mechanics.
Field plans ought also to accompany your lessons of
trigonometry and surveying ; after acquiring the theory
from your mathematical teacher, you might, in your
visits to the country, put it in practice with Mr. Cox.
As a lawyer this knowledge will be found very useful
to you. Your painting apparatus and other effects shall
be sent by the brig Archimedes (I hail the omen while
writing of mathematical studies to a young engineer !).
Before I am quite done with painting and drawing let
me give you a serious caution on the subject of carica
tures. It is a most dangerous art even when discreetly
indulged in, and a detestable one when directed by ill-
nature or revenge, or even without these, by careless
gayety. The very reputation of this talent is dangerous,
should it even never be exercised. I know not a single
advantage attending it. Never practise it, therefore, even
among intimate friends. The diffidence you express
LEWIS LIVINGSTON.
of your success in the different studies in which you
are engaged is natural at the first view of their variety
and difficulty. The perseverance I know you possess,
will soon vanquish the first obstacles, and you will then
pursue your course with the animation inspired by the
certainty of reaching the goal. Be firmly persuaded of
this truth, that, next to the consciousness of rectitude
in religion and morals, the highest satisfaction the hu
man mind is capable of feeling is that derived from a
sense of progress in knowledge. May a happy expe
rience teach you the force of this maxim ; then all the
other adventitious pleasures of life will acquire a per
manence which the want of this consciousness would
quickly destroy.
" EDW. LIVINGSTON."
LETTER NO. X.
" N. O., 1 6th March, 1816.
" MY DEAR SON : You have some reason to complain
of the irregularity of my correspondence ; I am pleased,
however, to find it has no effect upon yours. Do not
be afraid of your letters being troublesome to me ; on
the contrary, I examine the series carefully to see that
you do not fail in your engagement of writing at least
once a week. Your last is of the 16th February, and
you ought then to have received some letters I wrote
in January. They will, however, before this have given
you the information you desire as to my views respect
ing your studies and your profession. As to the first,
you have exactly fulfilled them. You know the impor
tance I have always attached to the mathematics, and
I am delighted to find that it is a favorite study with
you. Your mother only yesterday predicted you would
be extremely eminent in that branch, and she was of
LIFE OF EDWARD LIVINGSTON.
course much pleased to find by your letter to-day that
her prediction will probably be verified. I have urged
the necessity of a proficiency in the exact sciences more
strongly upon you, because I have throughout life felt
the deficiency of my own education in that particular.
At college I had no one in whom I had sufficient con
fidence to convince me of the utility of these studies,
and I was then only sixteen. I passed them over with
the carelessness natural to my age, learning only so
much as was necessary to the obtaining my degrees, and
before I acquired experience enough to show me my
error, professional business, politics, and misfortunes had
brought me to an age at which it would have been
ridiculous to attempt it. You have a right, my dear
son, to the benefit of my experience, and I feel no mor
tification whatever in any confession that may be of use
to you. Do not believe, however, because you are pleased
with the precision of mathematical truth, that you are
therefore excluded from eminence in those studies which
give a greater scope to the imagination, and especially
in eloquence. On the contrary, true eloquence can never
be acquired without a foundation of that true logic of
which mathematics is the basis. Imagination, unrestrained
by the reasoning powers, is but another name for fancy,
and fancy alone may sometimes amuse, but will never
convince. It may excite admiration, but it is never per
manently useful unless it be made subservient to argu
ment, and argument is the demonstration of mathemat
ical truth. Connect, therefore, your studies of eloquence
and the belles lettres with those sciences which can alone
render them useful as well as ornamental. Do not be
discouraged if for many years you should find a difficulty
in expressing your ideas with the elegance you wish.
If you have a sense of imperfection on this point, it is
LEWIS LIVINGSTON.
229
only a proof that your taste excels your skill, and as the
latter is to be attained by practice and a study of the
best models, the circumstance that seems to discourage
you at present ought to animate you the most ; you have
the idea of excellence impressed on your mind, and while
that is not corrupted be assured with diligence it can be
realized. Were you now satisfied with your composi
tions, there would indeed be very little hope of your
attaining the eminence to which you are destined if you
persevere and improve your taste, and direct your studies
by its dictates. My former letters will have anticipated
the answer to those now before me relative to your fu
ture profession. The study of the law, whatever may
be your destination in life, will always be extremely useful.
I intend, therefore, that you should make yourself master
of its practice as well as theory. But for one year, at
least, I do not wish your attention diverted from the course
of academical studies in which you are engaged. Dur
ing that time you had better remain where you are. I
shall most probably be with you in June, when we shall
be in time to take such measures as will be necessary
to insure your admission at the bar as soon as your
age will allow.
" I am ever, my dear son,
" Your truly affectionate father,
" EDW. LIVINGSTON."
LETTER NO. XI.
" April 29th, 1816.
" MY DEAR SON : I doubt very much the accuracy of
your observation that the best writers are those who un
derstand no living language but their own ; on the con
trary, I would cite many examples to contradict it.
Rendering the idiomatic phrases of a foreign language
LIFE OF EDWARD LIVINGSTON.
into our own is an exercise that must give a great com
mand of words to the student who is not content with
a literal translation, which no man of common sense
will be ; its difficulty gives a new spur to invention, and
a single page of Tacitus or Rousseau has made me use
more words, and shape more phrases, than if I had to
compose twenty on the same subject. I do not, how
ever, advise the study of any language (except Latin,
Greek, and French,) as matter of such primary impor
tance as to exclude that of the sciences, but I think they
need not interfere. A very short lesson taken punctu
ally every day will, at your age, make you master of
any language, and they are all ornamental and useful,
though they may not be necessary. If you practise the
law either in New York or Pennsylvania, you will find
some knowledge of the German to be important. It
is, however, a very difficult language ; and if you find
that it trenches on the hours you set apart for any of
the sciences, abandon it. I do not know whether to
compliment you on your discoveries in physics or not;
the pursuit of the perpetual motion, though always un
successful, may yet, like that of the philosopher s stone,
produce some improvement which would not otherwise
have been made. I had, myself, thought both of your
siphon and capillary tubes. The first I was very san
guine of, under the notion that the force of the water
issuing from the siphon was in proportion to the height
of the instrument, and not to the difference between the
surface of the water and the lower orifice of the siphon,
as it really is. The capillary tubes, I found, would raise
water; but I could discover no principle on which it would
flow through them, unless they were bent into the form
of a siphon, by which nothing was gained. I should
like to see your plan. Look for improvements with as
LEWIS LIVINGSTON.
much diligence as you please, but do not announce any
discovery merely on its theoretical probability. The
world loves to laugh at the miscalculations of the learned,
and when they get the habit they will continue it, even
without reason. As you quote my example, do not dis
regard a precept which has been proved to me by ex
perience.
" Farewell, my dear son.
" EDW. LIVINGSTON."
LETTER NO. XII.
" N. O., z8th October.
" It is very difficult for me, my dear son, to direct
your studies at this distance ; my general plan has been
frequently communicated. Mathematics in almost all
its branches, you know I consider as the groundwork
of all useful science, I might almost say of all useful
knowledge. This I have often repeated; and you seem
to be not only convinced of its truth, but to have acted
from that conviction, and to have applied to that study
with the perseverance necessary to become attached to
it. A correct knowledge of the learned languages, you
are also aware I consider necessary in the education of
a gentleman. I do not mean to carry my idea of this
necessity so far as to embrace that critical knowledge
which can only be acquired by a sacrifice of other more
useful studies ; but I think such a proficiency ought to
be made by the student as will enable the man in his
future life to taste the beauties of the Greek and Roman
authors, that he should read them with ease, and that
he should persevere in his studies until he reads them with
pleasure. After these come the modern languages, of
which you already possess the principal and most diffi
cult. If your leisure will permit, I should advise you
LIFE OF EDWARD LIVINGSTON.
to add the Italian to your stock, but to pay your prin
cipal attention to the ready and elegant use of the French
and Spanish, both in speaking and writing. A few
minutes each day, regularly and attentively employed
in composition, and using every opportunity of convers
ing with those who understand the language well, will
attain this desirable end. On this subject let me guard
you against that false shame which prevents learners
from profiting by the conversation of strangers in their
own language. Without seeming to seek for an oppor
tunity to display his knowledge, the man of sense will
find an occasion of turning the conversation into the chan
nel from which he wishes to derive instruction. Read
or recite as often as you can some portion of Racine s
and Voltaire s tragedies, before some one capable of cor
recting your faults, and sufficiently intimate with you to
do it freely. For French prose, I believe no author is
so good a model as Rousseau. Observe that I confine
my eulogium to his style, for I neither admire the man,
nor many of his works ; but there is a harmony in the
structure of his sentences which I can perceive, though
I by no means possess an accurate knowledge of the lan
guage. As for the Spanish I must again insist on the
great utility of a very familiar use of it. Our southern
neighbors are rising in the political world, and the local
situation of the United States will oblige us to an inti
mate connection with them. You have said nothing
lately of the German ; if you find it interfere greatly with
your other studies, you may discontinue it, for in truth
it is not so essential as the others. After Latin and
Spanish, Italian can without much difficulty be acquired
in a sufficient degree to read their great poets, it will
not probably be very necessary for you to speak it. The
studies I have mentioned may be considered as the run-
LEWIS LIVINGSTON.
mug base of your education, to accompany all the others
to the end of the piece. The principles of astronomy,
natural philosophy, chemistry, and natural history, may
be acquired in a sufficient degree for future use dur
ing the course of the next year, in the order that
your convenience or inclination may direct. I have said
nothing of history, and its two attendants, chronology
and geography, because I hope they are the occupation of
all those odd ends of time which are not employed in those
studies that require an instructor; nor of what is called
moral philosophy, because I think the best system of
morals is the dictates of an honest heart ; nor of logic, be
cause all that is necessary to be known of it is very little,
and that little will best be acquired in the pursuit of your
legal studies, which I do not wish you to think of till
the end of the year. I hope because you are upwards
of six feet high you have not thought it necessary to
dismiss your dancing-master ; on the contrary, great
grace of movement is necessary to make common-sized
people forgive a tall man the advantage nature has given
him in stature, I have before mentioned the necessity
of fencing well ; and if you have a good master, in the
course of the summer take lessons in equitation. Grace
in sitting a horse, and skill in managing him, are great
advantages.
" Your proficiency in drawing, and great taste for it,
renders anything but a caution not to let it engross too
much of your time unnecessary. Do not forget, how
ever, what I have frequently repeated, of the drawing of
plans and machines, which is, in my opinion, the most
useful branch of the art. The order of these several
studies, the time that you appropriate to each, the choice
of your masters, etc., etc., must be left to your own dis
cretion, on which I rely with confidence. I might assist
30
LIFE OF EDWARD LIVINGSTON.
you greatly were I with you, and the sacrifice of your
society costs me very dear ; but I will not, to gratify
myself, give up any important advantage to you, and
indeed the consciousness of doing so would destroy all
the happiness I should derive from having you with me.
" Farewell, my dear son.
"Eow. LIVINGSTON."
LETTER NO. XIII.
" January 13, 1817.
" MY DEAR SON : I have just now received your letter
of the 16th December, and am very glad to find that you
are again seriously at work. Remember, however, that
I neither expect nor desire that you should so devote
yourself to study as to exclude altogether society and
the amusements proper for your age. On the contrary,
my plan for your education embraces a due proportion
of all, and I have such confidence (rarely placed in one
of your age) as to believe you capable of mixing them
for yourself. You seem to speak discouragingly of the
effects of your studies, and I imagine you allude to the
learned languages ; it is impossible you can yet perceive
the operation which this species of knowledge has on your
style, or the importance of the store of ideas which this
study will afford you. I am myself but an indifferent
scholar. I spent my time rather idly at school, and still
more so at college, which I left at a very early age ; but
on mixing a little with the world I was fortunate enough
to discover the defects of my education. I then began
to remedy them, but was much counteracted in my en
deavors by my former habits of idleness, and by my new
pursuits of pleasure. Notwithstanding these disadvan
tages, I have had some success in forming a style which
has on particular occasions been commended; and I owe
LEWIS LIVINGSTON. ^35
it, I think, principally to a close attention to sonvo the
classics, which I studied until I became enamored ortrteir
beauties. The advantages which I enjoy so imperfectly
I wish you to possess completely ; so that when at my
age you are writing to your son, you may not only im
press upon him by principle, but exemplify in your style
and manner, the advantages to be derived from a perfect
knowledge of the classic models of good writing. Modern
authors have their day of fame ; they find admirers and
critics ; but that which all the world has for two thousand
years admired, and still admires, must be good, and there
is no danger in forming one s self on such models. By
forming I do not mean imitating or attempting to imi
tate in original compositions; but what I do mean is
transferring their spirit into your writings by cultivating
a taste for their beauties, and, when that taste is formed,
indulging it by frequent perusals and translations. When
you meet with a beautiful passage, such as some of the
exquisite pictures presented by Livy, ask why they please
you. Examine whether the story w r ould be more strik
ing if told in any other manner, if the parts could be
differently arranged to greater advantage 1 If any figure
or other ornament would render it more striking ? Nine
times out of ten, in the author I speak of, you will find
that he pleases because he copies nature, and that all ad
ditional ornament would spoil the effect which is derived
in his style from an inimitable simplicity. I am glad to
find you pass but an hour in the office. This will not in
terfere with your course of studies, but may be made to
cooperate with it. I would recommend you, therefore, to
divide that hour between Quintilian and the Institutes of
Justinian. To prepare yourself for the latter, read first
with attention the chapter in Gibbon which contains
the history of the civil law, and a little book called
236 LIFE OF EDWARD LIVINGSTON.
6 Horse Juridicse, which was published at Philadelphia
by Mr. Du Ponceau, with some good notes. If I go on
at this rate you will not complain of the brevity of my
letters. By the way, that complaint may be anything
else for aught I know. It is written in a style of obscu
rity that would do honor to Oliver Cromwell. I enclose
it that you may send it back with explanatory notes.
The first object of all writing, and particularly of letter-
writing, is to be understood. This fault has not occurred
in any of your letters before, and therefore it strikes me
more forcibly. Farewell, my dear son ; I will not close
my letter without expressing to you the pleasure I felt
yesterday at hearing you spoken of in terms of the high
est commendation by General Ripley at a public dinner.
" EDW. LIVINGSTON."
LETTER NO. XIV.
" February, 1817.
" MY DEAR SON : The people who tell you that I could
pretend to any political advancement in New York, if
they are not actuated by a complaisant insincerity, cannot,
I think, be well informed. Popularity is a prize too
eagerly contended for by candidates who make it the
pursuit of their lives to leave any hope of acquiring it to
one who never understood, and who disdained to prac
tise its mysteries. Of all the follies of my youth, and
[ have had too many, the one of which I am most per
fectly cured is the desire of political preferment. Do
not take this as a general reflection applicable to all ;
the pursuit of honest fame, the desire to serve your coun
try, the noble ambition of devoting even your life when
her safety requires it, all these it would be a kind of sac
rilege to characterize as follies. Mine consisted in the en
deavor to push myself forward into places that would have
LEWIS LIVINGSTON.
been, certainly as well, perhaps much better, filled by
many others, to the neglect of my private affairs, and by
that means involving myself. Take this, therefore, as a
rule which I cannot too often or too seriously impress
upon you. Never accept any public employment that
will directly or indirectly trench upon your independence.
If my endeavors to secure your fortune should be unsuc
cessful, first procure, by your own efforts, such a provis
ion as shall raise you above the necessity of incurring
any pecuniary obligation. You may then, and not be
fore, pursue your public duties without any danger of
being forced by necessity to abandon them. I do not
mean by this that you should endeavor to amass great
wealth. Such a pursuit would be an unworthy one; but
when wealth cannot be attained commensurate with our
habits and desires, these last may be restrained to the
limits of our circumstances, and the same end be attained
with much less trouble. Adieu, my dear son. May
Heaven bless you with as much fortune as you can wor
thily enjoy, and all the advancement that will tend to the
welfare of your country.
;t EDW. LIVINGSTON."
LETTER NO. XV.
" 29th September, 1817.
" MY DEAR SON : This I presume will find you at
New York, resuming your usual studies. I wish you
particularly to go through the course of chemistry, min
eralogy, and geology, and above all things to continue
your translations from the Latin and Greek classics, par
ticularly the historians. You say you cannot find a copy
of Livy, but surely in such a city as New York, you
may borrow it, if you cannot buy it. Purchase a copy
of Quintilian, which I wish you to study accurately. His
238 LIFE OF EDWARD LIVINGSTON.
style is elegant, and his precepts generally correct. He
requires more of his orators than can generally be attained,
and, as well as Cicero in his treatise De Oratore, con
siders a perfect orator as something more than human.
But though none have acquired that point of perfection,
a close attention to the study may enable some to approach
it, and failure in such attempts is in itself attended with
some degree of glory, and always with great advantage.
The mind that is great enough to appreciate the char
acter of a great speaker, the spirit that has energy suf
ficient to attempt its acquisition, will always attain a high
superiority, although other circumstances should prevent
their reaching the goal. Should you enter your name
in a lawyer s office on the same footing you were in
Mr. P. s, I advise you to read with attention and make
extracts from the Institutes of Justinian. Read as much
as possible from the original, and do not recur to the
translation except for words and phrases you can find
nowhere else. Calvin s Lexicon Juridicum, which you
will find in the City Library, will be a good assistant,
and you had better have recourse to it than either to
Cooper s or Harris s translation.
" Much as I wish to see you I cannot think of let
ting you lose this important winter, which you would
do by passing it here.
"Eow. LIVINGSTON."
LETTER NO. XVI.
"Plantation Ste. Sophie, 7 December, 1817.
"About the 1st of October, having exposed myself
very much to the heat and rain, I was taken with a vio
lent fever, which reduced me very much. I thought it
completely broken ; but it has returned at irregular inter
vals ever since, and has, I think, very much impaired
LEWIS LIVINGSTON.
my constitution. I arrived here yesterday, and already
feel so much benefit from the change of air and exercise,
that, though I quitted my bed only forty-eight hours ago,
I am strong enough to go about the whole day with
out any great fatigue. I was more sorry than surprised
at what you tell me of the violence with which some
persons enter into political animosities, fostering them
until they make them personal, and giving themselves
much more pain than they inflict. As to the particular
subject of the conversation you relate, whether it be
owing to a disposition I have always encouraged of for
getting injuries as soon as I possibly could, or not, I
cannot tell, but I remember none which the gentleman
alluded to has done which ought to make me, particu
larly at this distance of time and place, participate in
the hostile feelings which others perhaps justly entertain
towards him. I have long lost all feeling of party spirit;
very good men think very differently on the same sub
ject, and no political measures, none but those tending
manifestly to the ruin of the country, will ever excite any
warm sensations, or provoke any warmth of language on
my part. I would oppose all that I thought wrong, were
I in any of the departments of government ; and I think
it is but fair in me to believe that those who are there
will act at least as wisely and as honestly as I should.
To those, therefore, I leave it ; without, however, debar
ring myself the privilege of calmly, but independently,
expressing my opinion .on every subject of public interest
whenever occasion may require it. Mais pour en revenir
a nos moutons. I spoke to you favorably of the Gov
ernor s measures, because I think them, as far as they
have come to my knowledge, (which I confess is very
imperfectly,) well calculated to promote the honor and
permanent interest of the country, and to be based on en-
24-0 LIFE OF EDWARD LIVINGSTON.
lightened and liberal views. His motives may be found
ed on personal interest or ambition. Of this I am no
judge. I judge only from the effect, and I think until
Heaven shall endow us with the faculty of reading the
heart, it is the only fair mode of judging. But I do not
desire to be his partisan, or the partisan of any man.
If my earnest desire of returning to my country should
ever be realized, I wish to avail myself of the happy ex
emption my absence has given me from all party attach
ment or animosities. I can then only enjoy that undis
turbed obscurity in which I wish to pass the remainder
of my life.
" I had several things to add which I must defer, as
I find I have overrated my strength. God bless you,
my dear son.
" Your affectionate father,
"Eow. LIVINGSTON."
LETTER NO, XVII.
" September, 1818.
" MY DEAR SON : I have received your account of
your expedition,* with which I am very well pleased.
I could have wished, however, you had been more particu
lar as to the manner in which you carried on your ne
gotiation. The Governor s indisposition prevented your
seeing him, but you must have written, or did you trust
altogether to the influence of Mr. Smith 1
" If the great cause between the two fur companies
was tried while you were there, you must have heard the
best speakers at the bar. What is their force ? Is the
question between them merely one of the boundary of
their grants, or do they draw their privilege in question 1
* His mission to Canada to pro- which an account will be given fur-
cure the removal of General Mont- ther on in the present chapter,
gomery s remains to New York, of
LEWIS LIVINGSTON.
Is the foreign commerce carried on from Quebec or Mon
treal chiefly I When I was there, about seventeen years
ago, only vessels engaged in the carrying of furs came
to Montreal. Did you see many of the British officers]
" I have received a letter from your Aunt M. She
says that F. L. is about to prepare some biographi
cal notice of General Montgomery. Is he qualified for
the task 1 It is no easy one. The biography of the
present day is wretched trash, trying to raise common
events by an inflated style, and sinking those that are
truly great by a mixture of affectation and vulgarity
of expression, swelling the matter for a few pages
into a large book, and filling the intervals between the
thoughts with words. It would grieve me to see the
memory of one for whom I had a regard oppressed with
such a monument. I know of no one but General Arm
strong who could perform this task, both for General
Montgomery and the Chancellor.
" Farewell, my dear son,
" I am, with the truest affection, yours,
. LIVINGSTON."
LETTER NO. XVIII.
The date and beginning of this letter are wanting. It
was probably written before some of the preceding.
" While on this subject, I wish you to get a large, and
the latest map of the United States ; hang it up in your
room, and, beginning either at the North or South, study
every State successively, until you make yourself master
of its boundaries, rivers, towns, harbours, etc.; and when
you meet with well-informed men from any State con
verse with them on the subject of its geography, popu
lation, and history, until the principal points are well and
31
LIFE OF EDWARD LIVINGSTON.
accurately fixed on your mind. The little odd minutes
which form so large a portion of human life, and that
are constantly lost in silly observations on the weather,
etc., may thus be turned to profit and amusement too.
I would not, however, have you an importunate ques
tioner ; nothing is more irksome. But the conversation
may without any direct attempt generally be turned to
the point you wish, and your man be made to give all the
information he has, without being ordered to stand and
deliver it. For instance, I will suppose that Mrs. Kin-
sey, among her South Carolina guests, should receive an
old officer who had served in the Revolutionary War, and
had been present at the Battle of Camden : you will im
mediately turn to General Lee s Memoirs or Ramsay s
History for the general account they give of that battle,
and of the events which preceded or followed it. You
will observe whether your authors agree or disagree on
the leading features of the action, and you may after
wards without impropriety tell your veteran that you
have read their accounts, but will be greatly obliged to
him if he will tell you on which you ought to confide
on such and such points. This, seasoned with a com
plimentary allusion to the share he had in the affair, or
in the general course of the war, will induce him to com
municate with pleasure all he knows, and perhaps some
thing more ; for this you will have to make allowance,
proportioned to the character of the narrator, for this
kind of information is not always the most correct. Con
versation rather gives us the means of acquiring the ma
terials of knowledge than knowledge itself. It pins facts
in the memory by discussing them, and some little anec
dote or secondary circumstance, not thought of sufficient
importance to find a place in a written relation, imprints
the principal event indelibly on the memory. A propos
LEWIS LIVINGSTON.
of Revolutionary officers, they are a race of men that are
now almost extinct. By the time you enter life very
few of them will survive ; they have generally received,
and deserve the highest respect; this veneration will in
crease as their numbers diminish, and as antiquity casts
its glow over their faults. It will be interesting before
you die to have known and conversed with such men.
I would therefore advise you to cultivate their acquaint
ance on every proper occasion ; and when you receive
any historical event from any one who was actor or pres
ent at the scene he relates, commit it in a few words to
writing when you return home, with the name of the
person from whom you had the information and the
date. Such memoranda you will find hereafter of great
use.
" I am suffering under the effects of an influenza, which
has stupefied and tormented me for a fortnight. This is
a much better excuse for the Blue Devils than any which
a young gentleman in your situation can possibly have.
Yet they have not attacked me. Be assured that the
Blue are not more pertinacious than the Black Devil,
and the Scriptures say that if you resist him, he will fly
from you. Apply the same remedy to the visitations of
your azure tormentors, and be assured you will defeat
them.
"Adieu, my dear son; receive the blessing of your af
fectionate father,
" EDW. LIVINGSTON."
During the period covering the dates of these letters
Mr. Livingston placidly toiled in his profession, besides
managing, or trying to manage, though with a glar
ing want of economy and of skill, to improve, in order
to render marketable, two sugar plantations, of which he
244 LIFE OF EDWARD LIVINGSTON.
had become possessed, and all the while pushing hope
fully towards a determination his lawsuit, now a mon
ster of many heads. As it gradually grew evident to
his mind that years must elapse before these resources
would enable him to get clear of his burden, he thought
of other plans, and, in 1816, undertook to furnish the
government with a great quantity of live-oak timber, in
satisfaction of his debt. Why he was unsuccessful in
this, I have not been able to discover ; but the enterprise
met with some miscarriage, and an undertaking which,
most likely, some shrewd and ignorant man might have
managed successfully, proved beyond the capacity of one
who had shown his abilities equal to so many situations
and such varied emergencies. The old and heavy debt,
by its accumulations of interest, went on increasing from
year to year.
Lewis entirely justified the fond and unusual confi
dence which his father reposed in him. For three years,
from the age of seventeen to that of twenty, he pur
sued his studies by himself at New York and Philadel
phia, in the very spirit of the injunctions conveyed by the
letters from New Orleans. The result in the way of
mental and social accomplishments was all that the pa
ternal standard exacted. He was of a tall frame, similar
to that of his father, of swift perceptions and versatile
tastes, of a sedate or slightly melancholy bearing, and of
the strictest modesty and refinement. In the summer
of 1818 he was commissioned, by the Governor of New
York, De Witt Clinton, in pursuance of an act of the
legislature of the previous session, to proceed to Quebec,
to superintend the removal of General Montgomery s re
mains to the city of New York, a commission which
he executed with perfect address and judgment. From
a minute report of his journey and proceedings on this
LEWIS LIVINGSTON.
occasion, written to his father, I extract the following
humorous account of an embarrassment which his mod
esty suffered :
" So much for the General ; now a word for myself.
The inhabitants of Whitehall, who with the prophetic
spirit of the witches in Macbeth had, as I have already
informed you, hailed me Colonel, gave me, as the event
turned out, the title I had a claim to. The Adjutant-
General, on his arrival, showed me the General Order
which had been issued, in which the name of Colonel
Livingston stood prominent, and explained the mystery
by presenting me a Colonel s commission, which the Gov
ernor was pleased to call a reward for my good conduct.
If the other grades are to be obtained at so easy a rate
as this, I do not despair of one day becoming a Major-
General ; and, to say the truth, the honor that has been
conferred on me I would willingly have dispensed with.
I have felt so ashamed in opening letters directed to
the colonel, that I think I could go to Quebec to un-col-
onel myself."
In the same letter, he compares himself upon this jour
ney to the ass loaded with relics, of La Fontaine, the
animal that found it difficult to avoid the mistake of
appropriating the homage which the passers-by only in
tended for the load which he carried.
On the 29th of June, Governor Clinton, who conducted
the matter with a very delicate regard to the feelings of
Mrs. Montgomery, wrote to inform her that the remains
of the General had reached Whitehall, and that they had
been received with appropriate honors by the fleet sta
tioned at that place. He added that he had directed a
military escort to accompany them to Albany. The cor
tege arrived there on Saturday, the 4th of July. After
lying in state in the capitol over Sunday, the remains
246 LIFE OF EDWARD LIVINGSTON.
were on Monday taken to New York, attended by the
military escort, on board the steamboat Richmond, and
on Wednesday were deposited, with due ceremonials, in
their final resting-place at St. Paul s Church, under the
cenotaph which had been erected by order of Congress
many years before.
The Governor had advised Mrs. Montgomery at about
w r hat hour the boat, bearing the remains of her husband,
would pass her house, Montgomery Place. By her own
request she stood alone upon the portico at the appointed
time. She had lived with the General but two years.
It was then almost forty-three years since she had parted
with him at Saratoga. For a third of a century out of
this latter period, the waters of the Hudson, like all other
waters, had been ignorant of steam-vessels. The change
which in the mean time had come over her person was
not greater than that which the face of her country, its
government, and all the objects with which she was famil
iar, had undergone. Yet she had continued as faithful
to the memory of her " soldier," as she constantly called
him, as if she still looked for him to come back alive and
unaltered. The steamer halted before her ; the " Dead
March " was played by the band, a salute was fired, and
the ashes of the departed hero passed on. The attend
ants of the venerable widow now sought her. She had
succumbed to her emotions, and fallen to the floor in a
swoon.
At the end of the same year, after a separation of three
years and a half, Lewis rejoined his father at New Or
leans. The happiness of their meeting was only quali
fied by an intense anxiety caused by the situation of the
affairs of the latter. It was a crisis in the litigation of
his title to the Batture. A judgment had been rendered
in his favor some time before, and he had confidently
LEWIS LIVINGSTON.
looked forward to the enjoyment of the fruits of this
success, freedom from debt, return from exile, tran
quil retirement ; and he had not at first felt any appre
hensions respecting an appeal which his adversaries had
taken. But that appeal was now soon to he decided,
and some intimations which he had lately received alarmed
him much. The letters written by Lewis, after his ar
rival, to his aunt, Mrs. Montgomery, portray vividly the
incidents of the suspense which overhung the household.
Under date of the 15th of February, 1819, he told her
of the catastrophe,* in the following lines :
" The die is cast ; the unfortunate event for which my
last letters must in some measure have prepared you has
taken place ; and my father, in the evening of his days,
finds himself robbed of his property, with all the forms
of law and mockery of justice, at a time, too, when, as
he thought, all his difficulties had vanished, and he was
soon to meet a reward for all the toil, trouble, and painful
anxiety this unfortunate affair had cost him. The ways
of Providence, we are told, are invariably governed by
the strictest principles of justice, and we are perhaps
bound to believe it; but certainly they are extraordina
rily mysterious. It is difficult to reconcile with our no
tions of justice the uninterrupted series of misfortunes
which has attended my father, whose goodness and un
conquerable patience seem only to have made him more
enemies, and drawn upon him greater persecutions. His
usual fortitude, however, has not forsaken him on this
momentous occasion ; and the dignified composure with
which he listened to the judgment which blasted all his
hopes, and stripped him of the fruits of fourteen years
hard and painful labor, drew tears from the eyes of all
* This particular decision is re- Livingston in full, in 6 Martin s
ported at length, with the opposing Louisiana Reports, 19-256; and see
arguments of Moreau - Lislet and pp. 281-415 of the same volume.
24-8 LIFE OF EDWARD LIVINGSTON.
his friends, and struck with awe his bitterest enemies,
those even who were instrumental in his ruin. He does
not utter a complaint ; but the shock has been too cruel
and severe, and though he does not suffer his affliction
to show itself by any outward signs, still it cannot but
prey deeply on his mind. His health, which before was
delicate, has been impaired by it, and, in his present situa
tion, I dread to think of the difficulties he has still to
encounter. The public are equally surprised and indig
nant at the flagrant injustice of the case, and openly ex
press themselves upon the subject. They cannot help
sympathizing for the unmerited misfortunes of a man
whose worth, talents, and integrity they all acknowledge,
and whose ruin they are now sensible has been effected by
a few artful and designing men, who could not bear the
idea of seeing the man they hated and envied add the
advantages of wealth to those which nature and educa
tion had already bestowed upon him."
When Livingston returned from the court to his house,
on this disastrous day, his family began to express the
feelings which filled their hearts. But he soon cut the
conversation on this subject short by saying, " Come, let
us say no more about it, and let us have the dinner
served." During the meal he preserved his usual cheer
ful demeanor; and afterwards, taking by the hand his*
little daughter, he walked with her, according to his habit,
in the early evening, for an hour upon the levee, talking
with her only of her lessons and the various topics which
interest childhood, without allowing her to dream that
any subject was resting heavily upon his mind.
This adverse decision was by no means an end of the
contest respecting the title of the Batture. The whole
subject was not in question, and some reservations were
made by the court in favor of his title to a considerable
LEWIS LIVINGSTON.
part of the property, to depend upon circumstances after
wards to appear. There was still much money to come
out of this stubborn mine, once so promising ; but its
realization was now quite indefinitely postponed. The
litigation grew in intricacy, till Livingston, in later years,
was accustomed to say, " This matter has become so com
plicated that only two persons in the world now under
stand it, myself and Mazureau," referring to the lead
ing counsel employed in the case against him. He would
add, "Perhaps I ought to say Mazureau and myself; for
I don t know but he understands it better than I do."
In 1820, Mr. Livingston accepted a seat in the lower
house of the Louisiana legislature, A variety of notes
and memoranda, in his handwriting, which I have ex
amined, prove that he was a most active and useful mem
ber ; that he served as Chairman of the Committee of
Ways and Means, and that in this capacity he gave his
industrious attention to a great variety of the ordinary
subjects of legislation. He presently took the laboring
oar in a commission, in which he was joined with Moreau-
Lislet and Derbigny, charged with the task of reducing to
a code the whole body of the law of the State relating to
civil rights and remedies, a task which was completed by
the commissioners, whose work the legislature, in 1825,
for the most part ratified. In the composition of this
code there are manifest a care and an elegance hardly
to be found elsewhere in the language of legislative enact
ments. Several titles as those of obligations, of com
mercial agencies, and of partnerships were solely from
Livingston s pen, which he nevertheless industriously em
ployed upon other parts, as well as in shaping the whole
structure, and in preparing elaborate reports to the legis
lature of the plans and progress of the commissioners.
But the chief employment of Livingston at this time
32
250 LIFE OF EDWARD LIVINGSTON.
and perhaps the opportunity for broaching it was his
main reason for accepting a seat in the legislature was
the beginning of the most important labor of his life, his
system of penal law, in which he undertook a more com
prehensive reform than had been suggested by any pre
vious legislator or writer. Of this work it will be a
part of my remaining task to chronicle the progress,
completion, and effect.
In the winter of 1821, in the midst of these occupa
tions, Mr. Livingston began to feel some uneasiness re
specting the state of his son s health, whose symptoms
appeared to threaten a premature decline. Several phy
sicians were consulted, who united in advising the experi
ment of a voyage. In April, the young man sailed for
France. The effects of the -voyage did not prove so bene
ficial as had been hoped ; but still much encouragement
was derived from the opinions of the French physicians
who were consulted. The letters of the invalid to his
father touching upon all the topics which came in his
way, persons, places, and politics, science, literature, and
art wear the easy grace of an accomplished and
balanced mind. He was especially attentive to the col
lection and transmission of all books which he thought
might help his father in the particular studies in which
the latter was then engaged. In a letter, dated at Paris,
the 28th of June, 1821, he thus described his first inter
view with Lafayette :
" You were not mistaken, my dear father, as to the
reception that awaited me from this good old man. Had
I been his son, it could not have been more kind and
cordial. I called very early in the morning, and was
introduced into a very modest little parlor, with no other
ornaments than a fine engraving of Canova s statue of
Washington, and a large framed tableau containing a
LEWIS LIVINGSTON.
print of the constitutions of the different States. Here
I waited until my name had been given, and your letter,
which I sent in at the same time, had been read. I was
then led into an adjoining bedroom, where I found the
General confined with a slight attack of the gout. Upon
seeing me, however, he stretched himself out of his bed,
and taking my hand with both his, he drew me towards
him with so much warmth, and with an expression of such
kindness and good-will as really quite affected me. He
spoke of all our family with great interest, particularly of
Mrs. Montgomery and yourself, regretting that there was
so little prospect of his ever seeing you in Europe. How
delightful it is to contemplate a mind like this ; to see a
man, who, after having pursued such a career as Lafay
ette, and having reached the highest pinnacle of glory,
(for I would not exchange his name for that of any man
in Europe,) still possesses those social feelings which
honor and dignify the human heart ; to see him, in the
midst of his greatness, not unmindful of the friends of
his early days, nor willing to forget services and acts
of kindness received in other times. In this respect,
nothing that has been said of him has been exaggerated;
his countenance is the mirror of perfect benevolence, and
no one in examining his features and his expression could
say less than This is a truly good man ! He is now
warmly engaged with Benjamin Constant and other true
friends of their country in resisting the measures adopted
by the Court party, measures which, if persevered in,
he thinks will prove fatal. He is convinced, he says
openly, that nothing but the recollection of the horrors
of the last revolution has induced the considerate and
thinking men in the country to check the disposition
everywhere evinced by the people to rise en masse. The
very nature of the present debates, which are carried on
LIFE OF EDWARD LIVINGSTON.
with so much warmth as to have become even riotous,
indicates an approaching catastrophe. The ministers are
determined not to yield, and the people are equally de
termined not to be trampled upon.
" General Lafayette, who is the only person I have yet
called upon, advised me to have recourse to a Dr. Moreau,
a friend of his, and a man of standing in his profession.
I was of course guided by his advice, and received from
him a letter for the Doctor, which has obtained me the
most unremitted care and attention. Dr. Moreau rec
ommends the mode of life I am now leading, for about
ten days longer, or until he has ascertained there is no
danger of a second return of the ague, and then advises
me to retire for some weeks to La Grange, to which I
have received the most pressing invitations from the
General."
The next month, in a letter announcing the transmis
sion of several literary treasures, Lewis wrote as fol
lows :
" You will also receive a late production of Lord By
ron s, and a work upon La Legislation Criminelle, by
Dupin, who appears to be acknowledged as the head of
the French bar. Whatever may be his talents, his char
acter presents itself in the most favorable point of view;
for we see in him the generous advocate of Ney, of
Labadoyere, of Lavallette and his deliverers, and of all
who have had to contend against tyranny and injustice.
His present work contains sentiments perfectly in unison
with your own, and I send it under the idea that it may
be useful to you in the formation of your code. As the
business time of the year is now nearly elapsed, I pre
sume you are busily engaged in your great undertaking ;
but it seems to me that you will hardly have got through
the work before the next session of the legislature."
LEWIS LIVINGSTON. 53
The following passage is extracted from a long letter
written by the young invalid while on a visit to the baths
at Bagneres, in August, to his aged aunt, Mrs. Mont
gomery :
" I dined with the Marquis de Marbois, a few days
before I left Paris. He could hardly recover his sur
prise upon my presenting him a letter from the widow
of General Montgomery. He begged me to assure you
of his gratitude for your recollection of him, and added
that he would himself express to you his feelings by the
first opportunity that offered. I must not omit men
tioning, either, the compliment the Count de la Forest
paid you. Hearing I was from New York, he accosted
me in a salon where we both spent the evening, and
made many inquiries respecting his old acquaintances,
and, among others, asked whether I knew Mrs. Mont
gomery, describing her as une femme de beaucoup d es-
prit et d agremens. Do not accuse me of wishing to
flatter you. I but repeat the truth."
The young man remained in Europe only till the au
tumn, with varying hopes as to his health. He then
wrote to his father that he had concluded to hasten home;
but he did not reveal the fact that the object of the sud
den resolution was to die in his father s arms. He sailed
from Marseilles on the 10th of November, in a vessel
bound to New Orleans. His letter reached Mr. Liv
ingston but a few days before the ship arrived. These
were days of intense anxiety to the father. About the
middle of January, 1 822, the vessel appeared, and he
hastened on board, in order to see what change had
come upon the beloved features. But those features
he was never again to behold. Lewis, the victim of an
ultimately rapid consumption, had been, on the 26th of
December, buried by strangers, at sea.
LIFE OF EDWARD LIVINGSTON.
It was many years after suffering this stroke before
Mr. Livingston could bring himself to the point of un
locking the writing-desk in which the youth had left
his papers, and which his hands had last locked. His
name, it is said, never afterwards passed the father s
lips. The letters of the latter once or twice alluded to
the subject of his loss ; but it was not in Livingston s na
ture to break silence over the more acute pangs of the
heart.
The withering traces of this grief were long visible to
all who saw him, and his family believed that its effects
might have been more disastrous still, but for the impetus
under which he was at the time moving towards the com
pletion of his great work which was destined in a few
years to introduce him among the brotherhood of phil
anthropic thinkers of all countries in his own time, and
perhaps to enroll his name on the list of the recognized
apostles of human progress in different ages. Of this
work, as well as the circumstances and manner of its
production, I shall next try to present an accurate and
succinct outline.
CHAPTER XII.
THE LIVINGSTON CODE.
Mr. Livingston s Commission by the Legislature to prepare a Penal
Code His Qualifications and Zeal Report of his Plan Approbation
of the latter by the Legislature Completion of the Code Its Destruc
tion by Fire, and Restoration State of Criminal Laws in Louisiana in
1820 Original Features of the Livingston Code Proposal to abolish
the Punishment of Death Details of the Proposed System Explanatory
Reports to the Legislature Neglect of the latter to act upon the Re
ported Code Effects of its Publication.
IN February, 1821, Edward Livingston was elected by
joint ballot of the General Assembly of Louisiana to re
vise tbe entire system of criminal law of the State. For
such a task no man ever had more complete or more
comprehensive qualifications. He was fifty-seven years
of age, and in the prime of intellectual strength. He
had studied profoundly, and during most of his life, the
Roman, the English, the French, and the Spanish laws.
He was master of all the languages in which those laws
are written and treated. The variety of his professional
business had made him as familiar with the practical
working as with the theory of each system. He had
had some judicial experience in a court of both civil and
criminal jurisdiction. His miscellaneous acquirements
and general culture were such, in extent and variety, as
have rarely, if ever, been excelled by any man of ordi
nary and active pursuits. He had an unusual knowledge
of men in every condition, and of all characters, and es
pecially a thorough acquaintance with the peculiar people
directly interested. Philanthropy was the basis of his
256 LIFE OF EDWARD LIVINGSTON.
own nature, and a keen interest in the affairs of human
ity and society had given direction to much of his read
ing and reflection.
Thus prepared, he undertook the work with prodig
ious energy and enthusiasm. Indeed, the whole scheme
was his own, conceived deliberately in his rnind alone,
matured there in outline hefore being broached to the
public, and finally heralded by legislation conducted
under his direction. The initial act, passed in 1820,
was undoubtedly framed, word for word, by him. The
entire proposed reform, and the grounds of it, are there
correctly sketched in a short preamble and a single sec
tion. The former recites the " primary importance, in
every well-regulated State, that the code of criminal law
should be founded on one principle, namely, the preven
tion of crime ; that all offences should be explicitly and
clearly defined, in language generally understood ; that
punishments should be proportioned to offences ; that the
rules of evidence should be ascertained as applicable to
each offence ; that the mode of procedure should be sim
ple, and the duty of magistrates, executive officers, and
individuals assisting them, should be pointed out by law ;
and that, in many or all of these points, the system of
criminal law by which Louisiana was then governed was
defective." The latter enacts that " a person learned in
the law shall be appointed by the Senate and House of
Representatives at this session, whose duty it shall be to
prepare and present to the next General Assembly, for
its consideration, a code of criminal law, in both the
French and English languages, designating all criminal
offences punishable by law ; defining the same in clear
and explicit terms ; designating the punishment to be
inflicted on each ; laying down the rules of evidence on
trials ; directing the whole mode of procedure, and point-
THE LIVINGSTON CODE.
ing out the duties of judicial and executive officers in the
performance of their functions under it." This was an
uncommonly concise and exact way of laying out a vast
undertaking, and could only have been the work of the
man who had made himself ready for the task.
Mr. Livingston reported to the legislature, at its next
session, his whole plan. He had, in the mean time, writ
ten to the Governors, and to various officers and distin
guished men of all the other States, to the principal foreign
ministers of the General Government, and to many pub
licists in different countries, asking for practical informa
tion, to be used in shaping the details of the work. His
success in eliciting answers had not been encouraging,
but he felt no disposition to procrastinate any part of the
labor.
This report goes over the entire ground covered by
the system of penal law, as afterwards perfected and sub
mitted. From the plan there were none but formal de
partures in the execution.
The legislature promptly passed resolutions approving
the report, and urging the author to prosecute his work
according to the plan. Under this sanction he proceeded,
and, two years later, was ready to submit, for legislative
action, the complete product of his studies, a system
of penal law, divided into codes, books, chapters, sections,
and articles, accompanied by several introductory essays,
setting forth copious, exhaustive, and graphic expositions
of every part.
At this important point he met with a disaster well
calculated to put an end to his enterprise and extinguish
his ambition. He had given the final, lingering touches
to the draught of his work. An engrossed copy, for the
printer, had been made. One night he sat up late to
finish the task of comparing the two papers. That task
33
258 LI FE OF EDWARD LIVINGSTON.
was done, and with it the great mental undertaking.
Relieved of a long-borne and heavy, though not dis
tasteful burden, he went to sleep. An alarm of fire
awoke him. He rushed to the room where he had left
his papers. Both draught and copy were reduced to ashes.
The next morning he sat down to the work of reproduc
ing the vanished structure. He was then sixty years
of age. In two years more, the reproduction was com
plete, a phoenix of what had been destroyed.
In order to measure the importance of Livingston s
project, it is necessary to look at the sources, the history,
and the state as he found them of the criminal
laws of Louisiana.
Early in the last century, the French made some be
ginnings to settle the territory of Orleans, in pursuance
of a plan to establish and fortify a chain of possessions
from Canada to the mouth of the Mississippi River. But
the ground was claimed by Spain, as being part of Flor
ida, by right of prior conquest and possession. There
was no distinctness, however, in the boundaries or geog
raphy of the immense wilderness in the midst of which
the territory lay. As a result of these circumstances,
the settlement proceeded with accessions of citizens of
France and Spain, and from the neighboring colonies
of both nations. Definite government became necessary,
and negotiations were had between the two crowns, which,
in 1763, ended in mutual cessions of distinct regions,
that of Orleans going to Spain. In 1769, that power
formally promulgated its whole system of laws as con
trolling the new province. Under those laws it re
mained when the country was retroceded to France.
That transaction was not consummated until 1803, and
then only provisionally and to enable Napoleon to deliver
a title to the United States. The laws of Spain were
THE LIVINGSTON CODE.
left unrepealed in the territory by the double transfer, it
being " an established rule of national law that on the
transfer or conquest of a country the municipal laws re
main in force until they are expressly changed by the
new government."
Congress passed an act of October 31, 1803, author
izing the President to take possession of the new prov
ince, and vesting in officers to be appointed by him the
same military, civil, and judicial powers that were exer
cised under the Spanish government. The next year,
another act established a government for the territory,
extending to it the operation of certain laws of the United
States, such as those securing the trial by jury, and the
writ of habeas corpus; but declaring that all laws in
force in the Territory, at the passage of the act, and not
inconsistent with it, should continue in force until altered,
modified, or repealed by the legislature. The same pro
vision was repeated in the act of Congress of 1805, which
gave the Territory another grade of government ; and
when it ceased to be a Territory, in 18 IS, a like provi
sion went into the constitution of the new State.
No further abrogation of the Spanish penal laws had
in 1820 been enacted in Louisiana, except that the Ter
ritorial legislature had, in 1805, by law specified a lim
ited number of ordinary crimes and misdemeanors, and
declared that the offences so enumerated should be con
strued and tried according to the common law of Eng
land. Of course, other offences were legally left for
definition and punishment to the laws of Spain in force
when she parted with the province. These laws had been
the growth of ages, some of them of very dark ages.
Many of them might be practically obsolete in Louisiana,
because too cruel or too absurd to be executed there ;
others, not so bad in themselves, might be disregarded
260 LIFE O F EDWARD LIVINGSTON.
by the courts and by public opinion, or might be unknown
to either judges or people. Nevertheless, they remained
strictly a part of the law of the State, a useless and
perhaps dangerous part. It is interesting to glance in
review at some of these penal laws, lingering far from
home, upon uncongenial soil, scarcely recognized, yet not
formally put away.
One of the most curious heads of these unrepealed laws
was that called Enfamamiento, forming a title in the
seventh book of the Partidas. By its provisions, infamy
was denounced indiscriminately upon persons of various
classes, including children of illegal marriages, suitors or
advocates incurring rebuke, whether just or not, from a
judge in court, slanderers, unfaithful depositaries, widows
marrying before the expiration of a year s mourning, their
too impatient new husbands, procurers, comedians, mounte
banks, usurers, gamblers, and buffoons, an extraordi
nary jumble, truly, for the Anglo-Saxon mind to contem
plate. This kind of infamy attached, not upon convic
tion only, but from the fact. It worked exclusion from
office, and incapacity to testify in a court of justice. These
disabilities had been but partially remedied by any express
enactment in the constitution or statutes of Louisiana.
Nor had legislation touched those provisions of the
Partidas which, under the head of falsedades, or crimen
falsi, made it criminal and punishable with banishment
and confiscation of all property for an advocate to be
tray the secrets of his client, or designedly to cite the
law falsely; for a notary to deny the deposit of any
writing, or to hide or deliver it to another, or to read
or publish it, if deposited with him to be kept secret;
for a judge knowingly to give judgment contrary to law;
for any person to say mass without ordination ; for any
one to change his name by taking one more honorable;
THE LIVINGSTON CODE.
or for a woman to feign maternity, and produce a coun
terfeit heir.
The industry of this old code had, under the title of
homicide, (des los omezillos,) provided for punishing , in
cases of fatal results, the malpractice of quacks, and the
blunders of physicians, surgeons, or apothecaries, as well
as the administering of drugs, either for the destruction
of the unborn, or for the opposite purpose of overcoming
barrenness.
Defamation (deshonras) was a very comprehensive title
of the Partidas* It included all acts designed to degrade
or dishonor another, whether by writing, printing, speech,
gesture, assault and battery, overstrained gallantry, or
inflicting smoke upon a neighbor overhead, or water
upon a neighbor nearer the ground.
By the same code, not only were adulterers, seducers,
and their agents punishable with stripes and confinement,
banishment, confiscation, or death, but their offences were
subjected to some peculiarly severe definitions and to
some specially hard rules of evidence. And these enact
ments had not been repealed in Spain or in Louisiana.
There were even left some remains of those parts of
the old system which denounced bloody penalties upon
the crimes of Judaism, heresy, and blasphemy, and which
regulated torture, some vestiges of the pillory, of public
whipping, and of burning to death ; and some horrors,
in the way of punishments strictly legal, had been, un
der the Territorial government, actually imposed in some
parishes of the province, by magistrates of an antiqua
rian turn, and disposed
" To awaken all the enrolled penalties
Which had, like unscour d armor, hung by the wall,
And none of them been worn," *
* This use of the passage here ingston s communications to the
quoted I borrow from one of Liv- legislature. In this instance, as in
LIFE OF EDWARD LIVINGSTON.
revealing to the citizens of the State the common danger
that judges might be found, at any time, and when such
an evil would be least anticipated, determined
" To put some drowsy and neglected act
Freshly on "
such as should come within the range of their prejudice,
caprice, or resentment.
To sweep away all this rubbish, with the system to
which it belonged, or, in retaining any portion of the
latter, to reduce that portion to certainty and intelligi
bility, was the first object of the Livingston Code. On
this subject, the following is part of the language ad
dressed by the author to the law-makers:
" Be assured, legislators, of this truth, that there can be
no law of which the existence is a matter of indifference.
It must remain in your code for good or for evil : for
good, if it be a wise law, and carried into effect ; for evil,
whether it be good or bad, if it remain unexecuted. In
the one case, the people are taught the dangerous lesson,
that the best precepts may be disregarded with impunity ;
in the other, they are subjected, when the danger is least
apprehended, to the unjust operation of a forgotten law.
Indeed, there is scarcely a greater reproach to the juris
prudence of a nation than the existence of obsolete laws ;
that is to say, laws that are none, laws that are no rule
to guide our actions, because they are unknown to, or
forgotten by, those upon whom they are to operate, but
which may yet be used to punish them for their contraven
tion, because they are known and remembered by those
who are empowered to enforce them, whenever the malice
many others, he seems to have quot- the substance of a passage, and to
ed from memory, and he did not ex- attend little to its precise form, as
actly follow his author; Indeed, in if he intended to give the quoted au-
quotations of this sort he often, if thor credit for his thought rather
not habitually, did the same thing, than for his language,
appearing to content himself with
THE LIVINGSTON CODE. 263
of a prosecutor, or the ignorance, corruption, or party
feeling of a judge, may induce him to draw the rusty
sword from its scahhard Hear what the wise Ba
con says on this suhject, The prophet says, it shall rain
snares upon them j but of all snares, the snares of the
law are the worst, especially of the penal law ; when they
have hecome useless, either by the accumulation of their
number, or by the lapse of time, they are not a light to
guide our steps, but a net to entangle them ; and Here
is a further inconvenience of obsolete penal laws ; for
this brings on a gangrene, neglect, and habit of disobe
dience upon other wholesome laws, that are fit to be
continued in practice and execution, so that our laws en
dure the torment of Mezentius, the living die in the arms
of the dead. "
But the Spanish system did not furnish all the rust
and rubbish which Livingston aimed to remove. There
was much in the common law of England laconically
introduced and referred to, for definition, evidence, and
procedure in certain cases, as we have seen, by the act
of 1805 which he desired to lop away from the juris
prudence of the State, as well as much that he wished,
while retaining it, to clothe with perspicuity, simplicity,
and certainty. He reviewed that system, with which,
at the expense of long study and practice, he was pro
foundly familiar, without reverence on the one hand,
and on the other without prejudice, but in the spirit of
a reformer as radical as enlightened. He wished the
new State to be rid of the vagueness, mystery, and
dependence on uncertain oracles, which centuries have
piled upon " the perfection of reason," and to receive,
in their place, precise, plain, and full regulations suffi
cient for all cases, gathered in a single book, where
everything good in each of the previous systems might
LIFE OF EDWARD LIVINGSTON.
be caught and preserved in a shape to be understood, and
where written law should, so far as possible, supersede
precedent, custom, and tradition. His scheme, in part,
was, instead of leaving the laws of crime and punish
ment what they had been, a mystery to lawyers and
judges, to bring them directly to the knowledge and
comprehension of the people.
The conscientious devotion of Livingston to this lead
ing idea is illustrated by the painstaking way he adopted
of escaping ambiguities of language in the enactments
he proposed. This was to submit the entire code, after
completion, to men not versed in the phraseology of the
law, and to mark for explanation every word not fully
or accurately understood by them. The words so marked
were, in the body of the work, always printed in a pecu
liar character, to show that they were the subject of ex
planation in a separate place, the Book of Definitions ;
and each word thus marked received all necessary at
tention in that book.
The clearness and certainty for which Livingston
strove went beyond the outward form to the inner sub
stance. He proposed enactments expressly abolishing all
constructive offences, and all distinctions between strict
and liberal constructions of penal statutes ; forbidding
every departure from the plain letter of the written law,
and requiring the courts, on the trial of a criminal charge
prosecuted under an ambiguous act, to acquit the accused,
and immediately report the case to the legislature.
One of the main directions in which he labored to have
Louisiana lead the age was humanity. Remedial, as
against vindictive laws, have had no abler and no more
ardent advocate. Every part of his work shows this,
but it is chiefly apparent in his efforts for the total abo
lition of the penalty of death, and in his plans for the
THE LIVINGSTON CODE.
reformation of offenders. By the former, he added large
ly to the then existing stock of known facts and argu
ments hearing upon the suhject ; and in the latter, he
presented views entirely original. The penalty of death
had not been done away by any of the United States,
then twenty-four in number ; and, though the prison
systems of several of the States were in advance of that
of Louisiana, none of them had realized the prominent
ideas of Livingston.
The catholicity of the reformer s spirit, and the prac
tical nature of his philanthropy, are visible throughout
his treatment of these topics. With him, the impor
tance of the proposed changes did not rest upon any
narrow doctrine or precise theory of penal law. He ex
amined with keen interest the several conflicting theories
concerning the authority for all punishment, but did not
feel any necessity to commit himself unreservedly to
either. Such questions as whether the right to punish
criminals depends upon an implied contract between so
ciety and its members, or merely upon the ground of
utility, or upon the principle of abstract justice alone,
and whether the true object of exercising the right be
solely to punish, or solely to reform, or both punishment
and reformation, and in what degrees, gave him no
trouble, because he held that, whatever discord in argu
ment these conflicting doctrines might lead through, yet
they could not avoid harmony in conclusion. In this
way he dismissed the casuistry of the subject, which,
after all, he believed had its origin rather in a confusion
of terms than in any real foundation for dispute.
The grounds upon which he urged the abolition of the
penalty of death, though humane in substance, were not
those of a dogmatist or sentimentalist. He looked upon
the true interests of society as paramount to all consid-
34
266 LIFE OF EDWARD LIVINGSTON.
erations in the criminal s behalf. He offered a substi
tute which, whatever might prove its effect as a public
example, would certainly not have held out, to the or
dinary transgressor, an alternative much less terrible
than death. It was imprisonment for life in a solitary
cell, to be painted black without and within, and bearing
a conspicuous outer inscription, in distinct white letters,
setting forth the culprit s name and his offence, with its
circumstances, and proceeding with a fearfully graphic
description of his doom: "His FOOD is BREAD OF THE
COARSEST KIND ; HIS DRINK IS WATER MINGLED WITH HIS
TEARS; HE is DEAD TO THE WORLD; THIS CELL is HIS
GRAVE ; HIS EXISTENCE IS PROLONGED THAT HE MAY
REMEMBER HIS CRIME, AND REPENT IT, AND THAT THE
CONTINUANCE OF HIS PUNISHMENT MAY DETER OTHERS
FROM THE INDULGENCE OF HATRED, AVARICE, SENSUAL
ITY, AND THE PASSIONS WHICH LEAD TO THE CRIME HE
HAS COMMITTED. WHEN THE ALMIGHTY, IN HIS DUE
TIME, SHALL EXERCISE TOWARDS HIM THAT DISPENSA
TION WHICH HE HIMSELF ARROGANTLY AND WICKEDLY
USURPED TOWARDS ANOTHER, HIS BODY IS TO BE DIS
SECTED, AND HIS SOUL WILL ABIDE THAT JUDGMENT
WHICH DIVINE JUSTICE SHALL DECREE."
The most important, as well as the most original feat
ure of Livingston s work was his proposal to enlarge
the scope of penal legislation so as to take in, not only
such measures as look to the punishment of crime after
it is committed, but also such as tend, in any way, how
ever remotely, to preclude its commission, to bring
under one central direction, crime, vagrancy, mendicity,
and all forms of pauperism, in short, to blend into a
single system the whole machinery of poor-house, w r ork-
house, and bridewell. In the universal separation and
independence of these establishments he thought he dis-
THE LIVINGSTON CODE.
covered a chief cause of the failure in the proper efficiency
and value of each one. The administrators of penal
laws have always heen restricted to the protection of so
ciety against crime only by waiting, watching for, and
then punishing its commission, while the administrators
of poor-laws have been limited to the business of feeding
without controlling their subjects ; from which it has
resulted that one of these departments has proved a pre
paratory school for the other, and, between the two, the
children of poverty and crime have been bandied for
ward and backward, without due benefit either to them
selves or to the community. The ranks of those who
commit the more positive crimes derive almost all their re
cruits from those who cannot or who will not honestly toil,
and those who, though willing to labor, yet lack employ
ment. He held that society is bound to support such
of its members as are incapable of supporting them
selves, and has a corresponding right to test the genuine
ness of that incapacity, a right which cannot be exer
cised without at the same time exercising a strict tutelage
and thorough control over all who either are incapable
of self-support or pretend to be so. A true system of
penal law, therefore, in his view, should deal with the
entire subject, and should confer upon its ministers a
pervading and organized authority over the evil from
top to foundation. A little vigor at the beginning might
save a good deal of rigor in the end. Under such a
system, in full operation, beggars and vagrants could
not roam abroad, plying their vocations. The law would
immediately take custody of all such, and assign to each
his place. Those unable to work would receive simple
support. Those able and willing to perform labor, but
unsuccessful in getting it, would be furnished with tem
porary occupation and subsistence. Those competent,
268 LIFE OF EDWARD LIVINGSTON.
but unwilling to earn their livelihood, would do so by
compulsion. All these would be classified and separated
in such a way as to guard, as far as practicable, against
social contamination, an evil against which Livingston took
constant pains to provide in every part of his system.
Illegal idleness would not then possess the charms which
freer systems impart to it, and would, of course, be
shunned by many whom it now attracts. Under such
a code, whether the agents of the pauper establishment
would have more business or not, the criminal courts
would certainly have less.
The machinery proposed for the working of the sys
tem comprehended :
A House of Detention;
A Penitentiary ;
A House of Refuge and Industry ; and
A School of Reform ;
all under the superintendence and conduct of one Board
of Inspectors. The House of Detention was designed
as a place of simple imprisonment, with two separate de
partments: the first to hold only misdemeanants, and per
sons committed for trial upon minor charges or as wit
nesses ; the second, those committed for crimes of the
higher grades. Its regulations were intended to dis
criminate between culprits and witnesses, and to allevi
ate to the latter, as far as practicable, the discomfort and
disgrace of confinement.
The Penitentiary was a subject of Livingston s most
intense study. He obtained copious information and sta
tistics from the other twenty-three States, as well as from
Europe, and minutely examined and reviewed the whole
history of the systems of Massachusetts, New York, and
Pennsylvania. He approved of no known system, though
he acknowledged the value of parts of several. His con-
THE LIVINGSTON CODE.
elusion was, that, under the best scheme of penal juris
prudence to be devised, the inflexible sentence of the
law upon every convict of a penitentiary offence should
be confinement in a solitary cell, with sufficient whole
some but coarse food, but without occupation or any hu
man attention, except needful ministration to physical
wants and private religious instruction. And this dread
ful penalty should be literally enforced against all who
are too obstinately depraved to accept, after a time, cer
tain mitigations on condition of good behavior. But to
those who might learn to crave occupation, improved
diet, books, and some taste of society, and who at the
same time might manifest a willingness to earn these
kinds of alleviation, the law should gradually unfold the
following inducements to perseverance in labor, obedience,
moral conduct, and desire of reform, namely:
1. A better diet.
2. Partial relief from solitude, and the means of edu
cation by the visits and lessons of a teacher of the prison.
3. Permission to read books of general instruction.
4. The privilege of receiving the visits of friends or
relations at proper periods.
5. Admission into a class for instruction, after a period
of good conduct that shall evince a sincere desire to re
form.
6. The privilege, after a long probation, of laboring
in society.
7. A proportion of the proceeds of his labor on his
discharge ; and
8. A certificate of good conduct, industry, and skill in
the trade he has learned or practised in prison, which
may enable him to regain the confidence of society.
These advantages, to be gained by good conduct, should
be liable to suspension and forfeiture for idleness or ir-
LIFE OF EDWARD LIVINGSTON.
regularity, and ought to be dispensed only in accordance
with severe and unbending regulations.
It was Livingston s earnest belief that such a gradual
education of the head and the heart of the confined crim
inal, though it could not be expected to produce uniform
reformation, would yet cause most convicts to graduate
from the penitentiary with softened and improved charac
ters, and often work a total reclamation to industry and
virtue. These opinions, while he disclaimed any visions
of millennial results from any possible system, he pressed
upon the legislature with fervor and eloquence. The
following paragraph is from his introductory report on
this subject :
" Let it not be said that this is a theory too refined to
be adapted to depraved and degraded convicts. Con
victs are men. The most depraved and degraded are
men; their minds are moved by the same springs that
give activity to those of others ; they avoid pain with
the same care, and pursue pleasure with the same avid
ity, that actuate their fellow-mortals. It is the false di
rection only of these great motives that produces the
criminal actions which they prompt, To turn them into
a course that will promote the true happiness of the in
dividual, by making them cease to injure that of society,
should be the great object of penal jurisprudence. The
error, it appears to me, lies in considering them as beings
of a nature so inferior as to be incapable of elevation, and
so bad as to make any amelioration impossible ; but crime
is the effect principally of intemperance, idleness, igno
rance, vicious associations, irreligion, and poverty, not
of any defective natural organization ; and the laws which
permit the unrestrained and continual exercise of these
causes are themselves the sources of those excesses which
legislators, to cover their own inattention or indolence
THE LIVINGSTON CODE.
or ignorance, impiously and falsely ascribe to the Su
preme Being, as if he had created man incapable of re
ceiving the impressions of good. Let us try the experi
ment, before we pronounce that even the degraded con
vict cannot be reclaimed. It has never yet been tried.
Every plan hitherto offered is manifestly defective, be
cause none has contemplated a complete system, and
partial remedies never can succeed. It would be a pre
sumption, of which the reporter s deep sense of his own
incapacity renders him incapable, were he to say that what
he offers is a perfect system, or to think that it will pro
duce all the effects which might be expected from a good
one ; but he may be permitted, perhaps, to believe, that
the principles on which it is founded are not discordant;
that it has a unity of design, and embraces a greater com
bination of provisions, all tending to produce the same
result, than any that has yet been practised. Whether
these principles are correct, or the details proper to en
force them, the superior wisdom of the legislature must
determine. But to think that the best plan which human
sagacity could devise will produce reformation in every
case, that there will not be numerous exceptions to its
general effect, would be to indulge the visionary belief
of a moral panacea, applicable to all vices and all crimes ;
and although this would be quackery in legislation, as
absurd as any that has appeared in medicine, yet, to say
that there are no general rules by which reformation of
the mind may be produced, is as great and fatal an error
as to assert that there are in the healing art no useful
rules for preserving the general health and bodily vigor
of the patient."
But Livingston perceived and felt the radical danger
that all the reformation which might be achieved by the
proposed discipline would speedily be done away, if no
OF EDWARD LIVINGSTON.
provision should be made to counteract the effect of the
practical outlawry which attaches to the discharged con
vict, and prevents him from procuring honest employ
ment. To preclude the necessity of a relapse into evil
courses, arising from inability to find virtuous society and
lawful work, the doors of the more honorable side of the
House of Refuge and Industry were to be opened to re
ceive the graduate of the penitentiary carrying out with
him a certificate of good conduct. That establishment
was to have two departments, one for voluntary, the
other for forced labor. In the former, occupation with
compensation was to be given to those able and desiring
to earn their livelihood, but lacking employment. The
latter was to be a receptacle of able-bodied beggars and
wilful vagrants, and to it all such were to be consigned
the moment of being detected in the practice of their vo
cations. Both classes of inmates were to receive not only
the hospitable care of the establishment, but, on leaving it,
credentials if earned attesting their good conduct.
One other establishment the School of Reform
would complete the proposed penitentiary system. This
was designed to be the place of punishment of all con
victs sentenced while under eighteen years of age to any
term of imprisonment less than for life, and for the con
finement of all vagrants committed under the same age.
It was to contain separate divisions for the sexes, a sep
arate dormitory for each prisoner, courts or shops for
the employment of the inmates, a school-room for each
division, and an infirmary. Every inmate was to be
taught some mechanic art, and either persuaded or
forced to ply it industriously, with only certain inter
missions, appropriated to instruction, to meals, to relax
ation, and to rest. A competent teacher was to be a
part of the establishment. The discipline was to be
THE LIVINGSTON CODE.
273
persuasive, so far as persuasion would serve, but coer
cive when required by the bad conduct of those
" upon whose nature
Nurture can never stick."
The inmates of the School of Reform were to be dis
charged only on the expiration of their terms of service,
or by apprenticeship, with these qualifications : that, not
withstanding the expiration of a term of service prescribed
in a sentence, no discharge (except by apprenticeship)
should take place of a male under twenty-one, nor of a
female under nineteen years of age ; and that the dis
charge by apprenticeship should not be made except after
two years residence in the institution, and a certain pro
ficiency in elementary education, nor without a written
recommendation of the apprentice, signed by the warden
and approved by the inspectors.
The work of Livingston, in its final shape, was styled
"A System of Penal Law," and was divided into a Code
of Crimes and Punishments, a Code of Procedure, a
Code of Evidence, and a Code of Reform and Prison
Discipline, besides a Book of Definitions. Each of the
codes was subdivided into titles, chapters, sections, and
articles, with headings, distinguishing their subjects, so
as to make easy the task of reference. And each code
was prefaced with general provisions, in the form of en
actments, declaring the principles and purposes control
ling the legislature in promulgating the system.
Every part of the work evinces the most elaborate at
tention to the cardinal objects of preserving a complete
unity of design, of shunning ambiguity and mystery, of
preventing, rather than avenging crime, and of letting
" rnercy season justice."
The several addresses of Mr. Livingston to the legis
lature, in the form of separate introductions to his sys-
35
LIFE OF EDWARD LIVINGSTON.
tern, and to each of the codes embraced in it, added to
the first report of his plan, would fill several volumes like
this. In all of them not a dull sentence can be found.
Their uniform style is adapted to attract a popular inter
est, and, at the same time, to satisfy a critical taste. It
makes no departures from dignity, and takes to itself no
stilts. It deals in plentiful illustration, and even orna
ment, but abounds in directness and plain force. It never
lacks the strong flow of a full stream. These produc
tions, if their author had left no other, would demonstrate
that America has not produced a more elegant, more
correct, or more forcible writer of the English language
than Edward Livingston.
The legislature of Louisiana has not acted upon this
system of law, prepared by its authority, upon principles
stamped with its express sanction. The progress of the
work brought out a good deal of opposition, conservative,
economical, disputatious, or pragmatical. All this would,
possibly, though this is matter of much doubt, have
yielded before the author s personal influence, if he had
remained at home ; but his destiny took him to Wash
ington, and invited him to a second political career ; he
accepted the call, and ceased practically to reside in
Louisiana.
But his performance did not meet the same neglect
from the world at large. Its publication brought him im
mediate and wide fame. Only an eminent American law
yer and politician before, he now took secure rank among
the philosophers and reformers of the first grade in all
civilized countries. Many of his separate recommenda
tions have been adopted by various legislatures, not only
of the United States, but of other nations, both Ameri
can and European. But as a system, upon the impor
tance of whose pervading unity and central vigor he placed
THE LIVINGSTON CODE. #75
such earnest stress, it has yet to be tried by some enter
prising 1 government, desiring beneficent progress, and
willing to lead the world in the march of reform. Of
o
some kind of advancement in penal legislation there is
still everywhere the sorest need. A great deal of bar
barism characterizes the old and tenacious abuses which
cling to the administration of penal justice : in the blind
adherence to arbitrary technical rules ; in the reliance upon
uncertain precedents ; in the ferocity of some punishments,
and the want of discrimination among others ; in the de
tention of witnesses ; and in the promiscuous confinement
of the young and the old, the tender and the hardened,
the innocent and the guilty. If, in the progress of the
world, even a partial remedy for these chronic abuses
shall be found in some system substantially like that of
Livingston, his name will live to be historically and per
manently associated with the names of Bacon, of Montes
quieu, of Beccaria, and of Bentham.
CHAPTER XIII.
THE REPUTATION OF THE CODE.
TF personal ambition had been Livingston s principal
motive, in the patient studies and labor by which he
produced his system of penal law, his reward would have
been as ample as it was prompt. The publication of his
plan gave immediate celebrity to his name in America
and in Europe. It was reprinted in England,* by a
stranger to the author, Dr. Southwood Smith, and at
Paris, in the French version of Davezac,")" elaborately
edited by the eminent Taillandier. German reviewers
reproduced it almost in full in their notices. The "West
minster Review " closed an article upon the London edi
tion with the following paragraph :
" We cannot conclude this notice of his labors with-
* Project of a New Penal Code, was entirely unacquainted with its
etc., etc. London, 1824. sounds, and never learned to compre-
t As was mentioned in the pre- hend the simplest conversation in
ceding chapter, the legislature of that tongue. It was chiefly through
Louisiana required that the projected this version that the code and Mr.
code should be prepared and present- Livingston s various explanatory re
ed in both the French and English ports became known upon the conti-
languages, a requisition which was nent of Europe. The French crit-
fulfilled. The French version was ics commended the general purity of
a translation from the English of Liv- its style, and pointed out only three
ingston, by M. Jules Davezac, an or four instances of what they might
uncle of Mrs. Livingston, a learned have termed " Americanisms,"
man, and president of the first college the use of words in senses to which
established at New Orleans. In this in France they were not applied, as
work the translator evinced a singu- " commission" for "perpetration"
larly exact comprehension of his au- " acquit" for " accomplisscment"
thor s meaning, even to minute and and " instiguer" for " exciter. 1
technical particulars. What made With these reservations, the com-
this very remarkable was the fact that position was pronounced to be a mar-
M. Davezac had acquired the Eng- vel for a production coming from
lish as one acquires a dead language, the Western wilderness.
THE REPUTATION OF THE CODE.
277
out joining our feeble voice to that of the legislative as
sembly for which he is preparing this code, and earnestly
soliciting Mr. Livingston to prosecute his work in the
spirit of this report. 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 had in everlasting
remembrance, venerated and loved. He is one of those
extraordinary individuals whom nature has gifted with
the power, and whom circumstances have afforded the op
portunity, 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." *
During the years in which Mr. Livingston was en
gaged in twice filling up the body of the work of which
the plan presented to the legislature was an outline, his
opinions upon minor questions of criminal legislation
were looked for and published, as soon as known, by
the most prominent writers upon jurisprudence, espe
cially in Germany and France, as the opinions of one
of the foremost publicists of the world.
When the work was at length completed and pub
lished, though neglected by the legislature of Louisiana,
a very different reception awaited it from the general
public, at home and abroad. The manner in which the
task had been executed universally satisfied the high ex
pectations which had been formed and expressed after
the publication of the plan. The name of Livingston
was now become illustrious. Victor Hugo wrote to him,
" You will be numbered among the men of this age
who have deserved most and best of mankind." f Vil-
* Westminster Re e vie e w for January, 1825.
) Vide post, p. 405.
78 LIFE OF EDWARD LIVINGSTON.
lemain declared that the proposed system of penal law
was " a work without example from the hand of any
one man." * Jeremy Bentham proposed that a measure
should be introduced in Parliament to print the whole
work for the use of the English nation, j" Taillandier
wrote : " The moment approaches when the legislature
of Louisiana will discuss the proposed codes, prepared
with so much care by Mr. Livingston ; we hope that his
principles will be adopted, and that State endowed with
the noblest body of penal laws which any nation has
hitherto possessed." J
It would be easy to multiply the quotation of similar
expressions, by writers of the highest authority, illustra
tive of the reputation and influence of this unenacted
code. But let it suffice to mention further the deliber
ate opinion, recently published, of an English author
most competent to pronounce such an opinion, that Liv
ingston is " the first legal genius of modern times."
The new law-giver received every kind of evidence of
the general appreciation in which his labors were held.
From reviews and journals, and from the leading con
temporary writers upon jurisprudence, there was a strong
current of exalted, almost unqualified praise. Many of
the most prominent statesmen of the world wrote to him
in terms of appreciative commendation. He received
autograph letters upon the subject of his work from the
Emperor of Russia and the King of Sweden. || The
* Vide post, p. 404. || The following are copies of these
f Bentham s Works, edited by Bow- royal letters :
ncyclopedia, torn. From the Em ^ eror of Russia
xliv. pp. 214, 215. "J ai ete, Monsieur, infiniment
Dr. H. S. Maine, formerly Pro- sensible a la lettre que vous m avez
fcssor of Civil Law in the Universi- ecrite. Si I Empereur Alexandre
ty of Cambridge, and author of the de glorieuse memoire vivoit encore,
profound work on Ancient Law. s il n avait te tout a coup enleve a
For the expression quoted in the text 1 amour et aux esp^rances de la Rus-
vide Cambridge Essays, 1856, p. 17. sie, il aurait, j en suis sur, accueilli,
THE REPUTATION OF THE CODE.
279
King of the Netherlands sent him a gold medal, with
a eulogistic inscription. The government of Guatemala
translated one of his codes, that of Reform and Prison
Discipline, and adopted it word for word.* In his
honor, the same government gave to a new city and dis
trict, forming a part of its territory, the name of Liv
ingston.
When the exiled Governor of Hungary, Louis Kossuth,
released from the imprisonment at Kutaiyeh, was enjoying
in this country the hospitable ovation which all classes
accorded to him, he was entertained at a public dinner
by the bar of the city of New York. In a speech which
he then delivered he took occasion to express his views
avec gratitude, Timportant travail exprime mes remerciemens et de
dont vous lui destiniez la commu- Tune et de 1 autre. La juste rdputa-
nication. Heritier de ses principes tion dont vous jouissez parmi vos
et de ses vues, penetre comme lui compatriotes est partagee de tous
de la necessite d assurer k ma patrie ceux qui etudient vos ouvrages ; elle
le bienfait d un code de loix qui lui acquerra de nouveaux eloges chez
manque, je m empresse de vous re- nous par la communication que j ai
mercier et pour votre lettre et pour faite de votre code k notre cotnite
1 ouvrage qui 1 accompagnoit. Un des loix. La tache que vous vous
de mes premiers soins a ete d attacher etes imposee est digne de votre phi-
k ma personne et de placer en quelque lanthropie et de vos profondes con-
sorte sous mes propres yeux la com- naissances. Elle doit etre appreciee
mission chargee d achever Toeuvre par tous ceux qui voient dans la
entreprise par I Empereur Alexan- clartd et les principes genereux de
dre. Connaissant vos lumieres et la legislation une nouvelle garantie
votre instruction profonde, j ai fait de 1 ordre social et des droits de
communiquer aussitot a cette com- citoyen. Continuez, Monsieur, a
mission les projets de code que vous remplir cette belle et honorable
m avez transmis. Elle y trouvera, vocation ; la presqu ile Scandenave
je n en saurai douter, de judicieuses y trouvera un motif de plus pour
idees, d utiles materiaux, et c est resserrer les liens de confiance et de
dans cette conviction que je vous bonne harmonic qui subsistent
otfre ici, Monsieur, 1 assurance de
ma parfaite estime.
" NICOLAS.
" Moscow, le 31 Aout, 1826.
" M. EDOUARD LIVINGSTON."
From the King of Sweden.
"Monsieur Livingston: J ai re9u
la lettre que vous m avez addressee
ainsi que 1 ouvrage sur la legisla-
heureusement entre elle et les Etats
Unis du Nord de 1 Amerique.
" Je saisis avec plaisir cette occa
sion pour vous exprimer, Monsieur
de Livingston, les sentimens avec les-
quels je suis
" Votre affectionne
" CHARLES JEAN.
" Christiana, le n Aout, 1832."
* Cod i go de Reforma y Disciplina
tion quele m annonce ; c est avec de las Prisiones. Guatemala, 1834.
une veritable satisfaction que je vous
280 LIFE OF EDWARD LIVINGSTON.
upon the subject of codification, and began by saying
that America had "a great authority for codification,
Livingston." Many years before that, the name of the
author of the " System of Penal Law for the State of
Louisiana " had become one of three or four American
names the best known and most respected in Europe.
At home, though not one of our leading jurists or
statesmen kept pace with Livingston s ideas, as promul
gated in his proposed code, and especially with his scheme
for abolishing the penalty of death, he received from all
sides clear proofs of a proud admiration in \vhich he was
held by the wisest and best of his countrymen. This sen
timent was expressed to him directly by many prominent
men, including Kent, Story, Marshall, Madison, and even
Jefferson. Chancellor Kent wrote to him often at this
period, discussing at large, and with warm interest, many
of the details of the new work. The following is an
extract from one of these letters, dated in February,
1826:
" I owe every obligation to you for your continued
friendship, and my sense of your talents and learning
has been constantly on the increase from 1786 to this
day. It is very likely I shall have some old-fashioned
notions and prejudices hoary with age and inflexible from
habit ; but I am determined to give you what I think,
on the reading of all the work, and to deal out my praise
and censure just as my judgment dictates.
" In the mean time, however, and before the war has
commenced, and while the chain of friendship remains
unbroken, suffer me to enjoy the parting, lingering rays
of an amicable intercourse, and to assure you," etc.
And a later communication from the same hand con
tains the following paragraphs :
" Though I shall always be dissatisfied with any code
THE REPUTATION OF THE CODE.
that strips the courts of their common-law powers over
contempts, and ceases to be a wholesome terror to evil-
minded dispositions by the total banishment of the axe,
musket, or halter from its punishments, yet I admit the
spirit of the age is against me, and I contentedly ac
quiesce.
" You have done more in giving precision, specifica
tion, accuracy, and moderation to the system of crimes
and punishments than any other legislator of the age,
and your name will go down to posterity with distin
guished honor."
But perhaps nothing can more strikingly illustrate the
position which Livingston now held before the country
and the world than the fact, that, at a time when his
debt to the government remained wholly unpaid, and
thus while the original cause of Jefferson s prejudice
against him was still outstanding in all its force, a
cause which, in ordinary circumstances, would have in
creased its fruits, like accumulations of interest, the
latter, from his retirement at Monticello, closed a long
letter to him, of which the whole will be given at a sub
sequent page, with the following assurance :
" Wishing anxiously that your great work may obtain
compleat success, and become an example for the imita
tion and improvement of other States, I pray you to be
assured of my unabated friendship and respect."
And in the same letter the venerable ex-President said
to his ancient friend, long estranged, as we have seen,
but now reconciled, as will presently appear, "I have
attended to so much of your work as has heretofore been
laid before the public, and have looked with some attention
also into what you have now sent me. It will certainly
arrange your name with the sages of antiquity."
36
CHAPTER XIV.
SIX YEARS IN THE HOUSE AGAIN.
Election of Mr. Livingston to Congress His Position in the House
Speech on Roads and Canals Letters from Jefferson and Du Ponceau
Intimacy between the latter and Livingston Letters to Du Ponceau
Completion of the Livingston Code Destruction of the Draught
Energy and Fortitude of the Author Industry in reproducing the Code
Letter from Webster Speech on the Bill to amend the Judicial System,
and on the Equality of Rights among the States Vindication of Chan
cellor Livingston s Services in the Purchase of Louisiana Close Atten
tion of Mr. Livingston to the Ordinary Business of Legislation Payment
of his Debt to the Government Manners and Social Habits General
Jackson in the Senate Growth of the Intimacy between him and Liv
ingston A Letter from the General Zealous Support of him for the
Presidency by Livingston Public Dinner and Speech at Harrisburg
Defeat of Livingston as Candidate for Reelection to a Fourth Term in the
House of Representatives His Election to the Senate.
~\T 7"HILE Livingston was intently occupied in his
* great work, his name was brought forward by
his friends as a candidate for the post of Representative
from the first district of Louisiana in the eighteenth Con
gress. To the member from the New Orleans district,
especially if unanimously chosen, there belonged at Wash
ington about as much political weight as if he were one
of the two members of the Senate from the same State.
The election was in July, 1822, and as no opposition
arose, and no rival candidate appeared, was unanimous.
He was afterwards twice reflected ; so that he sat in the
House of Representatives during six sessions, beginning
with that which opened in December, 1823. Thus, after
the lapse of nearly a quarter of a century, an interval
SIX YEARS IN THE HOUSE AGAIN. %$$
of turmoil deeply colored by disappointment and afflic
tion, he returned to the chamber in which his tri
umphs as a young statesman and Republican orator
had been achieved. In a letter to his friend Du Pon
ceau he wrote :
" The unanimous voice of my fellow-citizens sends me
to Congress, where I very much fear, however, I shall be
of no use. So long retired from public affairs, I am an
utter stranger to the politics of the day, and my old-fash
ioned Republican ideas, I fear, will find the less favor, be
cause, so far from being weakened by my age and ex
perience, they every day acquire new force."
The position of Mr. Livingston in the House was now
one of the highest and truest dignity. His reputation
was not only national, but was just becoming something
more. He was past the ordinary ambition for oratorical
display, but zealous in the discharge of all the duties of
a member. He was steadily in his seat, ready to speak
to all questions upon which he thought he could throw
light, watchful of the special interests of Louisiana, and
industrious in efforts to improve the Federal laws. Al
though such men as Randolph, Clay, and Webster were
members of the House, and Van Buren and Benton were
senators, he was looked upon as an acquisition of the
first importance in the national legislature. And this
in spite of the fact that his unhappy debt to the govern
ment was not yet paid. A striking proof of the univer
sality of the respect in which he was held is furnished by
the following letter, which, a few months after taking his
seat in the House, he received from the man at whose
hands he had suffered the largest and most cruel injuries,
injuries which he had not only long and keenly felt,
but had eloquently and strenuously denounced. Jeffer
son was now within two vears of his end, retired, strait-
LIFE OF EDWARD LIVINGSTON.
ened in circumstances, and, as to active political influence,
off the scene.
" Superfluous lags the veteran on the stage."
It was in these circumstances that Livingston, in the
prime of his strength and with rising fortunes, revived
and cherished towards his old adversary the sentiments
of his youth, and paid him such attentions as this letter
acknowledges. How different would have been the feel
ing and conduct of the average man of the world, not
to say, of the average Christian gentleman ! It is plain
that if in this instance the resentment which a sense of
injustice suffered commonly inspires had ever found a
lodgment in his breast, no trace of it was left remaining
there.
" Monticello, April 4, 1824.
" DEAR SIR : It was with great pleasure I learnt
that the good people of New Orleans had restored you
again to the councils of our country. I did not doubt
the aid it would bring to the remains of our old school
in Congress, in which your early labors had been so use
ful. You will find, I suppose, on revisiting our mari
time States, the names of things more changed than the
things themselves; that though our old opponents have
given up their appellation, they have not, in assuming
ours, abandoned their views ; and that they are as strong
nearly as ever they were. These cares, however, are no
longer mine. I resign myself cheerfully to the managers
of the ship, and the more contentedly as I am near the
end of my voyage. I have learnt to be less confident in
the conclusions of human reason, and give more credit
to the honesty of contrary opinions. The radical idea
of the character of the constitution of our government
which I have adopted as a key in cases of doubtful con
struction is, that the whole field of government is di-
SIX YEARS IN THE HOUSE AGAIN.
vided into two departments, Domestic and Foreign, (the
States in their mutual relations being of the latter) ; that
the former department is reserved exclusively to the re
spective States within their own limits, and the latter as
signed to a separate set of functionaries, constituting what
may be called the Foreign branch, which, instead of a fed
eral basis, is established as a distinct government quoad hoc,
acting, as the domestic branch does, on the citizens direct
ly and coercively ; that these departments have distinct
directories, coordinate and equally independent and su
preme, each within its own sphere of action. Whenever
a doubt arises to which of these branches a power belongs,
I try it by this test. I recollect no cases where a ques
tion simply between citizens of the same State has been
transferred to the Foreign department, except that of in
hibiting tenders but of metallic money and ex post facto
legislation. The causes of these singularities are well
remembered.
" I thank you for the copy of your speech on the ques
tion of national improvement, which I have read with
great pleasure, and recognize in it those powers of rea
soning and persuasion of which I had formerly seen from
you so many proofs. Yet, in candor, I must say it has
not removed, in my mind, all the difficulties of the ques
tion. And I should really be alarmed at a difference of
opinion with you, and suspicious of my own, were it not
that I have, as companions in sentiment, the Madisons,
the Monroes, the Randolphs, the Macons, all good men
and true, of primitive principles. In one sentiment of
the speech I particularly concur : If we have a doubt
relative to any power, we ought not to exercise it. When
we consider the extensive and deep-seated opposition to
this assumption ; the conviction entertained by so many
that this deduction of powers by elaborate construction
286 LIFE OF EDWARD LIVINGSTON.
prostrates the rights reserved to the States ; the difficul
ties with which it will rub along in the course of its ex
ercise ; that changes of majorities will be changing the
system backwards and forwards, so that no undertaking
under it will be safe ; that there is not a State in the
Union which would not give the power willingly by way
of amendment, with some little guard, perhaps, against
abuse, I cannot but think it would be the wisest course
to ask an express grant of the power. A government
held together by the bands of reason only, requires much
compromise of opinion, that things, even salutary, should
not be crammed down the throats of dissenting brethren,
especially when they may be put into a form to be willingly
swallowed, and that a great deal of indulgence is neces
sary to strengthen habits of harmony and fraternity. In
such a case, it seems to me it would be safer and wiser
to ask an express grant of the power. This would ren
der its exercise smooth and acceptable to all, and insure
to it all the facilities which the States could contribute, to
prevent that kind of abuse which all will fear, because
all know it is so much practised in public bodies, I mean
the bartering of votes. It would reconcile every one, if
limited by the proviso that the federal proportion of each
State should be expended within the State. With this
single security against partiality and corrupt bargaining,
I suppose there is not a State, perhaps not a man in the
Union, who would not consent to add this to the powers
of the General Government. But age has weaned me
from questions of this kind. My delight is now in the
passive occupation of reading ; and it is with great reluc
tance I permit my mind ever to encounter subjects of
difficult investigation. You have many years yet to
come of vigorous activity, and I confidently trust they
will be employed in cherishing every measure which may
SIX YEARS IN THE HOUSE AGAIN.
foster our brotherly union, and perpetuate a constitution
of government destined to be the primitive and precious
model of what is to change the condition of man over
the globe. With this confidence equally strong in your
powers and purposes, I pray you to accept the assurance
of my cordial esteem and respect.
" THO. JEFFERSON."
The speech referred to in the above letter elicited from
others a warmer degree of commendation than the ven
erable ex-President had to bestow upon it. Du Ponceau,
the publicist, between whom and Livingston there was
a close and life-long intimacy, wrote to him from Phila
delphia : " I have this moment read in the National In
telligencer your admirable speech on roads and canals.
I have never seen such eloquence in a Congressional speech
since I was born. I am delighted with it. I cannot
o
teh 1 you with what enthusiasm I dwell on every word
that it contains. Could you not lend me your eloquence
but for one week 1 I am now engaged in writing a dis
sertation on the nature and extent of the jurisdiction of.
the courts of the United States. But how can I write
after you I I wish I had you here to consult on my fool
ish performance. But that cannot be. I must invoke
your spirit, and try to catch a corner of your mantle."*
Du Ponceau was a friend whose head as well as whose
heart Livingston always highly valued and greatly de
pended upon. He had been one of his counsel in the
Batture affair, had superintended the publication of his
* This speech, which the learned a constitutional right to make such
Du Ponceau thought a model of elo- roads and canals as are necessary and
quence, \vas a very elaborate dis- proper for the transportation of the
course, couched in Mr. Livingston s mail, for the giving facility to mili-
best style, maintaining earnestly the tary operations, and to the corn-
affirmative of the question, " Has mercial intercourse between the
the government of the United States States ? "
288 LI FE OF EDWARD LIVINGSTON.
final pamphlet on that subject, had had the paper sub
mitted to his literary judgment as well as professional
approval, and had been freely relied upon for advice in
various questions, including some of the most profound
and difficult which Livingston encountered in the prepa
ration of his system of penal law. In May, 1821, the
latter had written to his friend thus :
" Our correspondence is something like that of the
hero of a fairy tale and the Genius that protects him :
the talisman is never resorted to but when there is great
need of assistance. Friendship has been the magic word
between us hitherto, and, though I have never used it
in vain, I have now another that will not fail to command
the full exercise of your powers : it is public good. Both
are combined in the request I make, that you will read
the enclosed and let me have your advice and assistance
in executing the task which is there detailed.
" I fear I have greatly overrated my powers in the
undertaking; but the die is now thrown, and I must
execute it as well as I can. My present impression is
strongly against the retention of the punishment of death.
I think it a most inefficient punishment in any case ; it
certainly has been found so in most. Is there good rea
son for retaining it in any ] Yet in all the States it is
retained for murder. Is not this owing- to a secret at-
C^
tachment to the fanciful lex talionis, or, what is worse,
to a vindictive spirit which the law should never indulge.
Let me have your sentiments fully on this point, and on
the utility, or rather the practicability, of reducing into a
code all that ought to be enacted under the head of crim
inal law.
" I shall, from time to time, rub the talisman, and call
on my Genius for his aid in extricating me from the
difficulties in which my imprudent undertaking has in-
SIX YEARS IN THE HOUSE AGAIN.
volved me. Remember that, in all the records of fairy
land, there is no instance of a refusal to obey the word
of power."
The following extract from a letter to Du Ponceau is a
specific instance of Livingston s method in searching for
light while endeavoring to frame a complete system of
criminal law. The result of the particular discussion here
elicited shows that he did not adopt the opinions of others
without being well convinced of their soundness, and that
his own judgment, aided by all the light he could get
from other minds, was always his ultimate dependence
in the conclusions he promulgated. The answer of Du
Ponceau admitted the force of the suggestion as to the
difficulty of framing wise laws for the punishment of acts
contra bonos mores, but advised that the subject could not
be safely passed wholly by, and that the French code fur
nished, in substance, the best provisions to be made on
the subject. Nevertheless, after full reflection, Livingston
adhered to his original impressions, omitting from his
system altogether the whole class of offences against
decency, and enforced his views on this point in his
address to the legislature with perfect conviction and con
fidence.
" I am in a difficulty, and, as it is one arising out of a
question of jurisprudence, I know no one to whom I
can apply for assistance with so sure a hope of relief as
to you.
" In the revision of my criminal code, I have now un
der consideration the chapter of offences against public
morals. This is intended to comprehend all that class
which the English jurists have vaguely designated as
offences contra bonos mores^ finding it much easier in
this, as they do in many other cases, to give a Latin
phrase that may mean anything, rather than a definition.
37
290
LIFE OF EDWARD LIVINGSTON.
" I have serious thoughts of omitting it altogether, and
leaving the whole class of indecencies to the correction
of public opinion. I have been led to this inclination of
mind (for as yet I have formed no decision) from an ex
amination of the particular acts which in practice have
been brought under the purview of this branch of crim
inal jurisprudence. In the absence of anything like prin
ciple or definition, I was obliged to have recourse not only
to precedent, but to the books of precedents ; and they
strongly reminded me of some forms which I have seen
in Catholic church books, of questions which are to be
put by the confessor to his penitent, in which every abom
ination that could enter into the imagination of a monk
is detailed in order to keep the mind of a girl of fifteen
free from pollution. Turn to any indictment of this kind
in the books, for the publication of obscene prints or
books, or for indecency of behavior, and you will find
the innuendoes and the exposition of the offence infinitely
more indecorous, more open violations of decency, than
any of the works they are intended to punish and repress.
The evidence must be of the same nature, and hundreds
will hear the trial who would never have seen the book
or the print. This evil is inevitable, if such acts are pun
ished by law.
" There is another, of no less magnitude, arising from
the difficulty of defining the offence. Use the general
expression of the English law, and a fanatic judge, with
a like-minded jury, will bring every harmless levity under
the lash of the law. Sculpture and painting will be ban
ished for their nudities ; poetry, for the warmth of its
descriptions ; and music, if it excites any forbidden passion,
will scarcely escape.
" On the whole, I am surrounded by difficulties. Help
me to a definition that shall include what ought to be
SIX YEARS IN THE HOUSE AGAIN.
punished, and not give room for the abuse I have pointed
out. Let me know how I shall decently accuse and try
a man for indecency; or else fortify me in my opinion
of letting public opinion protect public morals."
The calamity by which the manuscript of the Code, the
product of years of intense labor, was annihilated during
the night after its completion, has been already men
tioned. This happened in New York, at the house No. 66
Broadway, where Livingston lodged with his family and
worked during the recess of Congress. When he left
Louisiana for Washington the task was nearly done,
and required for its completion but a few months appli
cation. The first, or long session of Congress continued
till the end of May, 1824<, and then Livingston devoted
himself wholly to the work. On the 14th of November,
of the same year, it was finished, and, as I have said,
destroyed. He announced the misfortune to Du Ponceau
from whom he had lately borrowed a volume of Ba
con s Works in the following terms:
" The night before last, I wrote you an apologetic
letter, accounting for not having before that time thanked
you for your letter and your book. My excuse lay before
me, in four Codes : of Crimes and Punishments, of Crim
inal Procedure, of Prison Discipline, and of Evidence.
This was about one o clock ; I retired to rest, and in
about three hours was waked by the cry of fire. It
had broken out in rny writing-room, and, before it was
discovered, not a vestige of my work remained, except
about fifty or sixty pages which were at the printer s,
and a few very imperfect notes in another place. You
may imagine, for you are an author, my dismay on per
ceiving the evidence of this calamity; for circumstanced
as I am, it is a real one. My habits for some years
past, however, have fortunately inured me to labor, and
LIFE OF EDWARD LIVINGSTON.
my whole life has to disappointment and distress. I
therefore bear it with more fortitude than I otherwise
should, and, instead of repining, work all night and cor
rect the proof all day, to repair the loss and get the work
ready hy the time I had promised it to the legislature.
In a preliminary discourse, which I intended as a kind
of commentary on the text of the law, I had made sev
eral references to Bentham. Having the volumes be
fore me, I made no extracts ; and, the books being also
burned, I am much at a loss, as I cannot find them in
any library or book-store in this city. Will you do me
the favor to buy, borrow, or beg them for me ] The
works I allude to are the French editions, published by
Dumont: Principles of Legislation, 3 vols. ; Theory
of Punishments, 2 vols. ; and Treatise of Judicial Proof.
Mr. Malenfant will be good enough, if you can procure
them, to have them boxed and sent by the Union Trans
portation Line, which will convey them safe ; and if you
can only borrow them, I will carefully bring them on
with me when I come. Your little book escaped the
flames, and I have saved your Bacon, though not my
own. I make no apology for giving you this trouble,
because I know you will not think it one."
This fearful disaster did not ruffle the outward seren
ity of Livingston s demeanor in the least. But he had
much to do to soothe his wife and daughter, who, having
watched the progress of the work with a lively interest,
were thrown by its sudden destruction into the keenest
distress.
Six days after the accident, he wrote again to Du
Ponceau :
" I thank you most sincerely for your kind participa
tion in my calamity, for although I put the best face upon
it, I cannot help feeling it as such. I have always found
SIX YEARS IN THE HOUSE AGAIN. 93
occupation the best remedy for distress of every kind.
The great difficulty I have found on those occasions was
to rally the energies of the mind, so as to bring them to
undertake it. Here, exertion was necessary not only to
enable me to bear the misfortune, but to repair it ; and I
therefore did not lose an hour. The very night after
the accident I sat up until three o clock, with a deter
mination to keep pace with my printer ; hitherto I have
succeeded, and he has, with what is already printed, copy
for an hundred pages of the penal code. I find my rec
ollection strengthens by keeping the attention fixed on
one subject, and that by the help of my loose notes, which
serve as jalons, (have we any English word for this V)
I find my old route easier than I expected. Next week,
about Saturday, I will send you the penal code ; but you
cannot judge fairly of it without the other codes, each of
which elucidates and supplies deficiencies in the others.
The part I shall find most difficult to replace is the pre
liminary discourse, of which I have not a single note, and
with which (I may confide it to your friendly ear) I was
satisfied. A composition of that kind depends so much
upon the feeling of the moment in which it is written,
the disposition that suggests not only the idea but the
precise word that is proper to express it is so evanescent,
(mine at least are,) that it will, I fear, be utterly impossi
ble for me to regain it. I thank you again for the pains
you have taken to procure the books. The one you have
been so fortunate as to get will be of great service to
me. It is not the last edition, but I believe there is
no material difference. The price is no consideration with
me. I have seen the notice in the National Gazette.
It is, excepting the value it places on the work, precisely
what it ought to be. I yesterday had a long conversation
with Chancellor Kent ; he is in raptures with your book.
LIFE OF EDWARD LIVINGSTON.
I have laid it by, that I may enjoy it unmixed with the
alloy of my own productions, which at present engross
my attention ; and, to confess the truth, I read just
enough to convince me that I had engaged in a very
presumptuous undertaking, and was afraid to read more,
lest I should he forced to confess that it was an imprac
ticable one. I am not quite convinced of the truth of
the proverb that tells of the glory of failing in a great
attempt. The mortification is in proportion to the great
ness of the object we have endeavored to attain ; and if
glory depends upon the opinion of others, that very sel
dom comes in to comfort the unfortunate man who has
presumptuously miscalculated his forces."
Those who have read the preliminary discourse above
mentioned will be surprised to learn that it was the repro
duction of a performance with which its author had felt
satisfied, and of which not a single note remained ; and
will wonder at the manner of its accomplishment, if not
at the fact, that, under such disheartening circumstances,
it was undertaken at all.
In the preparation of his penal code, Livingston indus
triously sought aid from the opinions of all those whose
judgment he respected. To a request which he made
for the views of Jefferson, the latter, nearly at the close
of his long and preeminently useful life, wrote the follow
ing response :
" Monticello, March 25, 1825.
" DEAR SIR : I know how apt we are to consider
those we knew long ago, and have not since seen, to be
exactly still what they were when we knew them, and
to have been stationary in body and mind, as they have
been in our recollections. Have you not been under that
illusion with respect to myself! When I had the pleas
ure of being a fellow-laborer with you in the public ser-
SIX YEARS IN THE HOUSE AGAIN.
vice, age had ripened, but not yet impaired, whatever of
mind I had at any time possessed ; but five-and-twenty
chilling 1 winters have since rolled over my head, and
whitened every hair of it. Worn down by time in bodily
strength, unable to walk even into my garden without
too much fatigue, I cannot doubt that the mind has also
suffered its portion of decay. If reason and experience
had not taught me this law of nature, my own conscious
ness is a sufficient monitor, and warns me to keep in mind
the golden precept of Horace,
* Solve senescentem maturfc sanies equum, ne
Peccet ad extremum ridendus.
I am not equal, dear Sir, to the task you have proposed
to me. To examine a code of laws, newly reduced to
system and text, to weigh their bearings on each other
in all their parts, their harmony with reason and nature,
and their adaptation to the habits and sentiments of those
for whom they are prepared, and whom, in this case, I
do not know, is a task far above what I am now, or
perhaps ever was. I have attended to so much of your
work as has been heretofore laid before the public, and
have looked, with some attention, also, into what you
have now sent me. It will certainly arrange your name
with the sages of antiquity. Time and changes in the
condition and constitution of society may require occa
sional and corresponding modifications. One single ob
ject, if your provision attains it, will entitle you to the
endless gratitude of society, that of restraining judges
from usurping legislation ; and with no body of men is
this restraint more wanting than with the judges of what
is commonly called our General Government, but what
I call our Foreign department. They are practising on
the Constitution by inferences, analogies, and sophisms,
as they would on an ordinary law; they do not seem
96 LIFE OF EDWARD LIVINGSTON.
aware that it is not even a Constitution formed by a
single authority, and suhject to a single superintendence
and control, but that it is a compact of many indepen
dent powers, every single one of which claims an equal
right to understand it, and to require its observance.
However strong the cord of compact may be, there is a
point of tension at which it will break. A few such
doctrinal decisions, as barefaced as that of the Cohens,
happening to bear immediately on two or three of the
large States, may induce them to join in arresting the
march of government, and in arousing the co-States to
pay some attention to what is passing, to bring back the
compact to its original principles, or to modify it legit
imately by the express consent of the parties themselves,
and not by the usurpation of their created agents. They
imagine they can lead us into a consolidated government,
while their road leads directly to its dissolution. This
member of the government was at first considered as the
most harmless and helpless of all its organs ; but it has
proved that the power of declaring what the law is, ad
libitum, by sapping and mining, slily and without alarm,
the foundations of the Constitution, can do what open
force would not dare to attempt. I have not observed
whether, in your code, you have provided against caucus
ing judicial decisions, and for requiring judges to give
their opinions seriatim, every man for himself, with his
reasons and authorities at large, to be entered of record
in his own words. A regard for reputation and the
judgment of the world may sometimes be felt where
conscience is dormant, or indolence inexcitable. Experi
ence has proved that impeachment in our forms is com
pletely inefficient.
" I am pleased with the style and diction of your laws;
plain and intelligible as the ordinary writings of common
SIX YEARS IN THE HOUSE AGAIN.
297
sense, I hope it will produce imitation. Of all countries
on earth of which I have any knowledge, the style of the
acts of the British Parliament is the most barbarous, un
couth, and unintelligible ; it can be understood by those
alone who are in the daily habit of studying such tau-
tologous, involved, and parenthetical jargon. Where they
found their model I know not ; neither ancient nor mod
ern codes, nor even their own early statutes, furnish any
such example; and, like faithful apes, we copy it faith
fully.
" In declining the undertaking you so flatteringly pro
pose to me, I trust you will see but an approvable caution
for the age of fourscore and two, to avoid exposing itself
before the public. The misfortune of a weakened mind
is an insensibility of its weakness. Seven years ago, in
deed, I embarked in an enterprise, the establishment of
an University, which placed me, and keeps me still, under
the public eye ; the call was imperious, the necessity most
urgent, and the hazard of titubation less by those seven
years, than it now is. The institution has at length
happily advanced to completion, and has started under
auspices as favorable as I could expect. I hope it will
prove a blessing to my own State, and not unuseful per
haps to some others. At all hazards, and secured by
the aid of my able coadjutors, I shall continue, while
I am in being, to contribute to it whatever my weak
ened and weakening powers can ; but assuredly it is
the last object for which I shall obtrude myself on the
public observation.
" Wishing anxiously that your great work may obtain
compleat success, and become an example for the imita
tion and improvement of other States, I pray you to be
assured of my unabated friendship and respect.-
" TIL JEFFERSON."
38
Q8 LIFE OF EDWARD LIVINGSTON.
While Livingston was engaged in restoring the Code,
he suffered no diversions, either of pleasure, politics, or
repose, to interrupt his work. When passing some weeks
of a congressional vacation at the home of his sister,
Montgomery Place, he said, in a letter to Du Ponceau :
" Your city is becoming more quiet, I hope, after your
contested election. The sound of these commotions
reaches me in my quiet retreat, but it does not disturb
either my repose or my attention to subjects I believe
more important, but certainly better suited to my inclina
tion, and perhaps to my talent, if I have any." On being
urged by Mr. Webster to pay the latter a visit, his answer
elicited from the great expounder of the Constitution the
following sample of ponderous gayety :
" Boston, Sept. 21, 1825.
" MY DEAR SIR :
" You cheer us with the possibility of a visit, but again
you damp us by calling it a faint hope. I can only ad
monish you, that, if you suffer these learned labors to in
duce you to deprive us of the pleasure of seeing you, as
they have hitherto done, I shall be likely to be an enemy
to codes all my life. As to Mrs. Webster, I believe she
has decisively made up her mind on the subject. We are
determined, however, to look out for you until we hear
that you are gone South, or until we ourselves move off
in that direction.
" I am, dear Sir, very truly yours,
"DANL. WEBSTER."
While Livingston continued a member of the House of
Representatives, but few occasions arose for bringing him
SIX YEARS IN THE HOUSE AGAIN.
299
out upon topics of general and permanent interest. The
following passage forming a small part of his speech
delivered in January, 1S26, upon a bill to amend the judi
cial system of the United States by creating new circuits,
to embrace the States then lately admitted into the Union
exhibits well his manner in addressing the House at this
period. Having referred to the history of the several
States which, after admission, had been for any time left
without circuit courts, in order to explain the circum
stances and reasons of the omission, he proceeds :
" The first moments of a State are generally devoted to
the interesting task of internal organization. The ener
gies and talents of the new State are directed to matters
of immediate interest, and it is, therefore, not astonishing
that this anomaly should not earlier have attracted atten
tion. Nor can the neglect be considered as a reproach, far
less urged as an abandonment of the right. The time,
however, has at length arrived, when the six States in
which district courts only are now established demand that
they should be placed on an equality with the other mem
bers of the Union, and the three other Western States
desire such a modification of the system as will enable the
judges of the circuit court to despatch the accumulation of
business which obstructs the administration of justice.
Why do the six States require this ? Why do we desire
to be placed on a footing with the other States ? We de
sire it, Sir, because we are States ! entitled to equality ! the
most perfect equality with the oldest, the most populous,
the most influential, the best represented State among the
first thirteen of the Union ! Rights, privileges, honors,
burdens, duties, everything, by the structure of our govern
ment, must be participated by every member of it, on the
broadest principle of equality. I would not, coming as I
do from one of the smallest States in point of population,
300 LJ FE OF EDWARD LIVINGSTON.
I could not, without betraying its honor and dignity,
receive in its behalf even an exemption from any duty,
however burdensome, if borne by the other States, if it
were conceded as a badge of inferiority ; I should be dis
avowed by those who sent me, and justly disavowed. They
ask no exemptions ; but they demand ! yes, Sir, that is the
word, they demand an equality of rights. Inattentive
to this right when it was not disputed, they are feelingly
alive to it when their claim is contested ; and in their be
half I say, with Hotspur, for a disputed right,
* Mark ye me,
I ll cavil on the ninth part of a hair.
" But, again, why do we desire the establishment of a
circuit instead of a district court 1 What advantage is
to be derived from it 1 I answer, the first effect will be
uniformity. But what are the advantages, says the gentle
man from Virginia, of uniformity ] We desire it simply
because it is uniformity. If the circuit system be an ad
vantage to the States in which it is established, it ought to
be extended to us ; for we are entitled to every political ad
vantage, resulting from the Union, which they enjoy. If
it be, on the contrary, a burden, it is one of which we
ought to support our share. If the system be good, ex
tend it; if it be bad, abolish it, and give us one that shall
be equal in its operation. We cannot extricate ourselves
from this dilemma, while we acknowledge what nobody
has yet ventured to deny, in words, the perfect equality
in political rights in the several States. Uniformity, says
the same honorable member, can only, on this subject, be
desired as a matter of State pride and State feeling. Yes,
Sir, it is a question of pride and feeling, of honest pride
and dignified feeling, a pride that ennobles, a feeling
that will not permit us to suffer wrong, and which, when
we disregard, we lose the best characteristics of freemen.
SIX YEARS IN THE HOUSE AGAIN. SOI
If this bill had no one object of profit, convenience, or
utility, in the ordinary acceptation of those terms ; if
its only end were to place us on an equality with the
other States, in a circumstance the most insignificant,
if the right to it were denied, I should contend for that
right with the same pertinacity. Sir, the privilege of
being covered during the debates of this House is one
which of all others I hold to be the most worthless ; it is
one of which I do not frequently avail myself, and which,
if it were not sanctioned by such high authority, I should
think somewhat indecorous ; yet, Sir, make a discrimina
tion in this paltry privilege, declare that none but the
representatives from the Atlantic States shall be covered,
but that those from beyond the mountains shall enter bare
headed, do this, I will not ask how long we shall stay
here, how many hats will be seen in this hall, but how
many heads will be found to wear them. No, Sir, pride,
founded on a sense of dignity, feeling, originating in a
sense of wrong, ought to be cherished in governments, as
in individuals ; lose them, and patriotism is at an end, and
the motive to glorious actions is destroyed ; for the pure
virtue that does not need their aid has either rrever ap
peared upon earth, or is lost in the degeneracy of modern
times. Direct them to proper objects, but do not reduce,
or endeavor to annihilate them.
" But is this a mere matter of pride I Important as its
gratification is when properly directed, is that the ob
ject ? There are real disadvantages attending the present
state of things, independent of the injury to pride of opin
ion or to wounded feelings of dignity. There is risk of
fortune, of life, of reputation, to the inhabitants of six of
the Western States, which is not incurred by those of the
others. We have seen to what objects the powers of the
Federal judiciary extend : that all suits in which an alien
302 LIFE OF EDWARD LIVINGSTON.
or a citizen of another State is plaintiff come within its
scope ; and that accusations for crimes against the United
States are to be decided there. Under these two heads
every judicial question that can affect property, life, liberty,
or reputation may be comprehended.
" Now, I ask gentlemen who oppose this bill to give a
deliberate answer if they deign to give any, I am sure
it will be a candid one to this question : whether a de
fendant who has these all-important concerns depending
upon the decision of a single district judge, not always
a man of high legal talents, (for your paltry salaries will
not command them,) without the fear of any revision of
his sentence, and remote from any superintending control,
whether a defendant so circumstanced can be said to
enjoy equal rights with him who cannot suffer either pun
ishment or loss of property unless the decision of his
district judge is concurred in by a man selected from the
highest talents and distinguished for his integrity and
learning, and who, in every case of a doubtful nature,
even when they concur, may, by a pro forma dissent, have
the benefit of a recurrence to the assembled wisdom and
justice of the Supreme Court. Are these two parties on
the same footing I Can it be said, with the semblance of
reason, that they enjoy the same rights I And can it be
said that a State, all of whose citizens are subject to these
disadvantages, is placed on an equal footing with other
States, whose inhabitants enjoy the privileges I have enu
merated I If it cannot, the question is at an end ; for the
terms of our admission are express. Each of the new
States is declared to be one of the United States, and
admitted into the Union on an equal footing with the orig
inal States, in all respects whatever. Now, Sir, how is
this stipulation fulfilled, if the property, lives, and liberty
of our citizens are subject to the will of a single man,
SIX YEARS IN THE HOUSE AGAIN. 3Q3
while yours can suffer in neither without the revision of
a wise and enlightened tribunal I But we have an appeal
from the decision of the district judge ; therefore we
have no right to complain ! Error, Sir ! palpable error in
fact, as well as fallacy in argument ! This right of appeal
is limited, in cases of property, to those above two thou
sand dollars in value. But in many instances the whole
fortune of an individual does not exceed that sum. In
criminal cases, there is no appeal. It is not only property
that is concerned, but liberty and life. Both may depend
on the construction of law. No innocence can protect a
man from accusation. All are liable to be dragged before
a court. My life may depend on a correct or false in
terpretation of a statute of the United States. It is sub
mitted to a district judge. He decides incorrectly against
me, and my life is lost. There is no appeal from his de
cision, though he may be the man the least qualified, in
the district, to pronounce. What would happen, if the
case were tried in a circuit, not in a district court?
First, the concurrence of a judge of the Supreme Court
in the opinion of the district judge would be necessary.
Secondly, if they did concur, if the case were one of first
impression, a pro forma dissent would be entered, and
final judgment could not be passed until the question had
been solemnly debated, and the sentence had received the
sanction of the Supreme Court. Now, I again ask gen
tlemen to say whether this is no disadvantage. Let them
meet this question fairly, and either give a satisfactory
answer, or agree to remove the evil by according to us a
uniform administration of justice."
In May of the same year, a debate upon the bill for
the relief of James Monroe, providing for payment to
the ex-President of various sums for services while in
the employment of the government, and including an
304 LIFE OF EDWARD LIVINGSTON.
allowance for salary and expenses for a certain period
of his absence on the mission to negotiate the purchase
of Louisiana, there being opposition to the bill, and
the friends of Mr. Monroe showing in the discussion a
perhaps over-zealous wish to make the most of the part
he had acted in the negotiation, afforded Mr. Living
ston an opportunity for making the following dignified
and conclusive assertion of the controlling influence and
merit of his departed brother in that most important
transaction :
" Sir : while I feel grateful for the handsome, and, I
hope I may be permitted to say, the merited eulogium
which the gentleman from Virginia has paid to the char
acter of my deceased brother, I must not omit to rectify
one error into which the gentleman has inadvertently
fallen in stating the great services which the late Pres
ident bad rendered to his country, services which no
one appreciates at a higher rate than I do, and in the
performance of which, part of the debt which we are now
about to pay was incurred. In enumerating these ser
vices, the gentleman adverted to his special mission for
making the Louisiana treaty, and stated that until his
arrival the resident minister, with all his exertions, had
been able to effect nothing; that the debts due to our
citizens remained unpaid ; and he gives us to understand
that the acquisition of Louisiana must be attributed to
the exertions and diplomatic skill of Mr. Monroe. Now,
Sir, with the most sincere desire to do justice to the im
portant services that gentleman has rendered to his coun
try, and with the greatest reluctance to say anything- that
might seem to operate against the bill for his relief, which
I shall support by my vote, and would by my arguments,
if I could suggest any more convincing than those which
have been so ably and eloquently urged by the gentle-
SIX YEARS IN THE HOUSE AGAIN. S05
man from Virginia, I yet have a duty to perform, which
obliges me to give to the House some account of the state
of the negotiation with France at the time of Mr. Mon
roe s arrival. It may, besides the principal object I have
in view, be interesting as an historical fact.
" The statement made by the gentleman from Virginia
of the hopeless state of the negotiation is perfectly cor
rect, if applied to a time somewhat anterior to Mr. Mon
roe s arrival. An indifference to our complaints, eva
sions of the clearest claims upon their justice, inattention
to the most urgent representations, for a long time char
acterized the conduct of the French cabinet. Disgusted
with all these diplomatic manoeuvres of the ministers,
Mr. Livingston resolved on a bold and unusual measure,
the expression of a sincere admiration for the extraordi
nary man who was then at the head of the government
of France, a prudent resolve to have no political connec
tion with, and to give no countenance to any party there,
more particularly to that which, calling itself republican,
naturally looked for aid from the minister of a republic.
An established reputation for honor and integrity, and
celebrity as a man of literature and science, had given
him a personal influence with the First Consul, of which
he was determined to try the extent. He had studied
his character, and thought that if he could enlist the mil
itary pride and love of fame which entered so largely into
the formation of that character on the side of justice,,
much might be done. Leaving, therefore, the beaten
route of official notes to ministers, he addressed the prin
cipal himself. He made a short and plain, but forcible
statement of the claims of our citizens ; he showed the
injustice that had been done to them; he adroitly availed
himself of the national interest that had been excited in
favor of France; showed the value of the supplies (on
39
306 LIFE OF EDWARD LIVINGSTON.
which some of our claims were founded) to her colonies ;
contrasted the confidence and good faith of our citizens
with the rapacity and infidelity to engagements with which
they had heen treated, and the anticipated payment of
our engagement to France with her delays and refusal
to do us justice; hinted at the advantage which England
might make of the unfriendly disposition which such con
duct was calculated to excite ; and concluded with a short
appeal to the feelings of the First Consul, on those points
on which he knew he could most sensibly be touched,
his personal reputation, the dishonor of breaking engage
ments he himself had made, the reputation to be acquired
by a strict performance of contracts, and the necessity of
preserving the word of a soldier and a man of honor.
After urging these considerations in the strongest man
ner, it was suggested, that, if the embarrassments of the
treasury, naturally resulting from a long and expensive
war, just then closed, and the prospect of its renewal,
should render the payment or the funding of the debt in
convenient, means might be found (evidently pointing to
a purchase of Louisiana) which would not only satisfy
our claims, but relieve some of the exigencies of the State.
To this was added the risk of losing the colony, if war,
then daily expected, should again break out. These and
other considerations were strongly urged in the letter.
This address, though not in the usual course of diplomacy,
was well received, and seems to have had the effect that
was expected ; for a communication was immediately
made to the minister, in which none of the usual evasions
or subterfuges were resorted to ; it contained an explicit
promise that the American claims should be honorably
adjusted and speedily paid. To prevent speculation, as
well as to create an additional tie on the French govern
ment, Mr. Livingston immediately gave notice to the
SIX YEARS IN THE HOUSE AGAIN.
agent of the claimants in France that he had received a
promise on which he relied for their payment, and at
the same time wrote to the United States, giving a sim
ilar notice, desiring it to be made public, and advising
the creditors not to part with their debts. This was in
the latter part of February, or the beginning of March.
Mr. Monroe did not arrive in Paris until the 12th of
April following. After this promise of payment, Mr.
Livingston did not cease to urge its fulfilment ; and, be
sides the usual and obvious arguments contained in his
former notes, he stated that he had the personal engage
ment of the First Consul, on which he had so much relied
that he had committed himself to his countrymen for its
punctual performance ; that the season for evasions and
delays was past ; and that he had the fullest confidence
in the honor and faith that had been pledged for doing
justice to his countrymen. Thus urged for the perform
ance of a promise which he himself considered as an hon
orable one, but without the means of performing it in one
way, the First Consul resolved to comply with it in the
other, that had been suggested by the minister ; and there
is the strongest reason to believe that a resolution to sell
was taken in council some days before Mr. Monroe ar
rived in France ; but what is certain is, that the day be
fore his arrival in Paris the cession of Louisiana was
proposed to Mr. Livingston by Talleyrand. Mr. Liv
ingston had then heard, either that Mr. Monroe had ar
rived at Havre, or was hourly expected, with powers on
that subject, and of course declined any specific answer
until he should arrive. Talleyrand then pretended that
he spoke without authority. But within two days after,
so urgent was the French cabinet to conclude the sale,
that one of the French Ministry, an old and intimate
friend of Mr. Livingston, called on him, the day of or
308 LIFE OF EDWARD LIVINGSTON.
the day after Mr. Monroe s arrival, but before he had
presented his credentials, before he had taken or could
take a single step in the negotiation, and explicitly offered,
by authority of the First Consul, to cede the province,
for a sum very little beyond that which was afterwards
agreed to be given by Mr. Monroe and Mr. Livingston.
The way was paved for this important acquisition by
official notes, indirect communications, and printed essays,
showing the little value of Louisiana to France, the ques
tion that would arise with the United States relative to
the navigation of the Mississippi, and the right of deposit
secured to us by Spain, and the certainty of its conquest
if the war should be renewed with Great Britain. So
that when Mr. Monroe s health permitted him, after his
arrival, to take part in the negotiation, everything was
done but fixing the price. In this, he cooperated with
Mr. Livingston, and they produced a diminution from
$12,000,000, exclusive of our own claims, to $1,000,000,
also exclusive of those claims.* The results of that treaty
have been most beneficial to the United States. The
measures and arguments which led to it have frequently
* This statement, including the upon himself, nevertheless, to de-
figures in the text, is according to mand the sum of 80,000,000 francs,
the report of Mr. Livingston s re- To this demand the American Min-
marks, in the annals of Congress, isters, Messrs. Livingston and Mon-
There is a considerable error, either roe, soon acceded, only asking a
in the report or in Mr. Livingston s stipulation, to which France agreed,
information on the point here re- that, out of the 80,000,000, the Uni-
ferred to. That the report is at ted States should reserve 20,000,000,
fault in part 1 think is clear from the to be applied to the satisfaction of
fact that these figures contradict what claims of their own citizens against
the speaker had said a few sentences France under the Convention of
before. The following is, in sub- 1800. It was declared by the treaty
stance, the whole history of the ne- that five and one third francs should
gotiation, as to the price of Louisi- equal the dollar of the United States,
ana. Napoleon authorized his min- So that the sum paid directly to
ister, Barbd-Marbois, to agree to cede France on the purchase was $n,-
the territory to the United States for 250,000, and the sum reserved to
the price of 50,000,000 francs, that satisfy the claims of citizens of the
sum, and no other, being his own United States was $3,750,000, mak-
suggestion. Barbe-Marbois took it ing the whole price 15,000,000.
SIX YEARS IN THE HOUSE AGAIN. 399
been detailed to me by my deceased relation. He fore
saw the advantage that must result to this country from
the acquisition, and he felt an honest pride in having been
instrumental in obtaining it."
No young politician could have been more attentive to
the ordinary and special interests of his constituents than
was Livingston at this period. He had been a member
of the House but four days when he introduced a measure,
which he afterwards pushed till it was carried into effect,
for the erection of light-houses, beacons, buoys, and float
ing lights, along the track of navigation between New
York and New Orleans ; and his active exertions se
cured the erection of new and splendid Federal build
ings at the latter place. He consulted not less the wants
and habits of the people of Louisiana in his efforts,
which were successful, to effect, in the changes of the
tariff, the imposition of additional duties upon the im
portation of molasses, and a reduction of the duties upon
red wines.
At the same time, his letters and political writings
show that he felt the most lively interest in national
works and projects, as internal improvements, the great
national road, and the scheme of uniting the two oceans
by a ship-canal, cutting the Isthmus of Panama. But that
which employed his labors and thoughts more than all
these subjects was the perfecting and restoring of his
system of penal law, which, after its completion for
Louisiana, he hoped to introduce into Congress, with
such changes as would adapt it to the use of the United
States. For this reason, principally, he wished to con
tinue a Representative. In order to do so, it was neces
sary for him so unskilfully had he managed his pecu
niary affairs to undertake some practice in the Supreme
Court, in order to eke out, with his pay as a member,
310 LIFE OF EDWARD LIVINGSTON.
an income sufficient for his expenses. To such profes
sional labor he devoted himself with characteristic cheer
fulness and zeal.
In the year 1 826 * he paid his long-standing debt to
the government, with its accumulations of interest, amount
ing then to a sum greater than the principal. This was
done by the sale of property to the government. As so
poor a financier was not likely to live long enough to
have so large an amount of money by him at one time,
it was well that this method of closing the business was
thought of. Having disentangled from the Batture liti
gation some lots in the city of New Orleans, to which
his title became clear and no longer disputed, he offered
them to the Treasury department for a sum covering
the precise amount due upon the judgment against him,
with interest. This sum was $100,014.89. The ad
ministration, of which he was politically an opponent,
after consideration, accepted the proposal, took the prop
erty, and discharged the debt.*(" The government made
by the purchase a good bargain ; for it not long after
wards sold the lots for $106,208.08, and so realized a
profit from the transaction. The debtor felt his relief
profoundly, but not, I suppose, with so keen a sense as
he would have experienced if he could have attained it
twenty years sooner.
The manners and social habits of Livingston were un
changed. He preserved the vigor of his health by daily
long walks, and his relish for society by free intercourse
with his friends and their families. His powerful con
stitution enabled him to enjoy heartily a social, and even
a convivial dinner, and immediately to retire, as if refreshed
* The above is the time of the act- t This arrangement was carried
ual satisfaction of the debt. The out through the machinery of a sale
formal discharge did not come out by the Marshal on an execution,
of the " Circumlocution Office" till the United States, by an agent, be-
the 20th of August, 1829. coming the purchaser.
SIX YEARS IN THE HOUSE AGAIN.
and strengthened, to spend the best part of the night in
the deepest studies. These lucubrations, so long con
tinued, did gradually lead him into occasional habits of
abstraction among his family and most intimate acquaint
ances. When caught in these absences of mind by the
exposure of some irrelevant answer on his part, he would
laugh heartily and loud. In the genial simplicity of his
demeanor he seemed unconscious of his increasing age,
or of his growing reputation. He discussed with ani
mation the most ordinary topics. He was always fond
of lively conversation, pun, and repartee ; but spirit rather
than wit was the characteristic of his own share in such
conversation. Of acrimony, or that pungency which is
akin to it, he was incapable. While he continued a rep
resentative, Josiah S. Johnston, a native of Kentucky,
and a distinguished and able man, was one of the sen
ators in Congress from Louisiana. Livingston and he
belonged to opposite parties, but personally were on terms
of great intimacy and perfect good-feeling. While the
former was member of the House, one of the terms of
the senator was about to expire, and he was the candi
date of his party in the legislature for reelection. The
opposition, in Livingston s absence, voted for, and near
ly succeeded in electing him senator in place of his friend.
One evening, while the result of the election was looked
for at Washingston, Mr. Livingston, at a ball, approached
Mrs. Johnston, who was standing in a set ready to dance,
and, bowing very low, said, " Madam, I congratulate
you. Your husband is chosen senator for six years
more." The lady thanked him for his news and his
gratulations. He lifted his finger as he turned to leave
her, saying, with a droll mixture of mock chagrin and
unmistakable good-nature, " But mind you, Madam, it
was only by a very few votes, very few indeed."
LIFE OF EDWARD LIVINGSTON.
At the same time that Livingston first took his seat
in the House as representative from Louisiana, General
Jackson repaired to Washington as a newly chosen senator
from Tennessee; and he resided there until his resignation
of the office two years later. We have seen how the ac
quaintance between Jackson and Livingston had begun, in
Congress in 1796, with common political views and mutual
respect ; how, after the lapse of many years, their destinies
had brought them into close relations with each other
in the memorable defence of New Orleans; and how they
had worked together and leaned upon each other through
out that critical and glorious campaign. The impressions
which they had then left upon each other were inefface
able. Livingston had clearly discerned in the General
those distinctive qualities which at length became so fa
miliar to all the world; and he had marked him Presi
dent of the United States, while Jackson himself had
not dreamed of his own fitness for such an office till
years afterwards. He was then as proud of the General s
friendship and confidence as at any later period, even in
the zenith of the latter s popularity and world-wide fame.
After parting, in 1815, they had written to each other
often, and on every occasion of any importance in the af
fairs of either. So complete was their intimacy that they
had taken mutual pleasure in executing for each other the
most ordinary commissions. In 1819, Livingston, wish
ing to assist a friend in procuring a pair of matched
horses, had consulted General Jackson on the subject,
who was delighted to get, for a price within the limit
allowed, " the only pair of good matched horses within
his knowledge," which, after purchasing, he would not
send till " a fair experiment could be made with them in
harness." In answer to an apology by Livingston for
troubling him with such a request, he had replied, " I
SIX YEARS IN THE HOUSE AGAIN. 313
regret that you should hesitate to command me in any
service that I could render to you or to your friends. I
never shall forget the aid you rendered me in the trying
scenes hefore New Orleans." The substance of this ex
pression he had often, and on almost every occasion, re
peated. In the same letter from which it is quoted he
had added, " I thank you for your expressions of con
gratulation on the triumph over my enemies in their late
wicked attack on me. These were the real enemies of
our country ; they cared not how deep or how unmerited
the wound they gave me, provided they could reach
and prostrate the administration, and exalt themselves
upon its ruin ; but ******* * ? * * * * 5 & Co. have
prostrated themselves ; they are politically fallen, never
to rise again. This is justice; for when men abandon
principle, and adopt the plan of elevating themselves upon
the downfall of others, regardless of the means they em
ploy to obtain their object, they ought and ever will
tumble, and their base acts recoil upon themselves. I
intend tendering to the Senate an answer to the report
of their committee, with the necessary documents, which,
I trust, will show their wickedness to the world. I wish
that you had the documents, or that I could wield your
pen." In December, 1816, the General, becoming some
what excited by what he thought the prospect of " a brush
with the Dons," had written to Livingston that he hoped
to have the latter with him in case of a campaign. Early
in 1823, President Monroe had tendered to General
Jackson the post of Minister to Mexico, which the lat
ter had declined. On that occasion he had written the
following letter to his friend :
" Hermitage, March 24, 1823.
"My DEAR SIR: On the receipt of your letter of
314 LIFE OF EDWARD LIVINGSTON.
the 25th ult. I had only time by the return mail to ac
knowledge its receipt, and say to you that on the subject
of the mission to Mexico I had not been consulted, and
that I had declined accepting of this mission.
" It was a just deduction of my friends to conclude
that I had been consulted before my nomination to the
Senate, and, of course, that I would accept the appoint
ment ; and many of them may conclude, under this im
pression, that I am very fickle, when they learn that I
have declined ; for this reason, I have thought it due to
you that you should be informed truly on this subject,
and also my reasons for declining.
" The first I heard of the intention of the President
was in a letter from Major Eaton, our senator, who ad
vised me that Mr. Monroe had sent for and consulted
him upon the subject, inquiring his opinion whether I
would accept, to which the Major replied that he could
form no opinion upon the subject. Mr. Monroe ex
pressing a wish that he would assure me of his friendly
views in making this nomination, I immediately an
swered that I would not accept ; and a few days after
this answer to Major Eaton, I received Mr. Monroe s
letter advising me of his nomination and the approval
of the Senate of the United States, to which I replied
that I could not accept for the reasons following in
substance.
" The present unhappy revolutionary state of Mexico,
with an oppressed people struggling for their liberties
against an Emperor whom they have branded with the
epithets usurper and tyrant, convinces me that no min
ister from the United States would, at this period, effect
any beneficial treaty for his country, and of the impolicy
of a republican representative at a court, which might be
construed as countenancing the empire in opposition to a
SIX YEARS IN THE HOUSE AGAIN.
republic. The people of Mexico, in their honest efforts
for freedom, command my warmest sympathies ; and their
success is intimately connected with the ultimate and gen
eral triumph of those liberal principles for which our
Revolutionary worthies fought and bled, and which now
form the pride and boast of United America. With
these feelings and wishes, which I believe to be general,
and in unison with my fellow-citizens, I did believe rny
situation at Mexico would be embarrassing to me, inde
pendent of the conviction that I was rendering no ser
vice to my country, when, by appearing at that court,
it might strengthen the tottering crown of Iturbide, and
enable the tyrant to rivet the chains of despotism upon
his country. To render service to my country could
alone constitute any motive for again acting in a public
capacity. You will find from my reasons stated, that
in consulting my own feelings I have not been un
mindful of or uninfluenced by considerations connected
with the best interests of my country, which I trust have
heretofore and shall always govern my conduct. Had
the affairs of Mexico been in a different condition, had
the voice of the people governed, my conclusion would
have been different ; for I believe it the true principle of
our government, that every man s services belong to the
nation when they are required by the unsolicited voice of
his country; and the appointment, being made without
consulting me, embraced what I believe ought to be the
governing rule of the President in making his nomina
tions. Had I accepted this mission, it would have been
among the first of my wishes to have had you with me.
Should I ever be again brought by the unsolicited call
of my country on the public or political theatre, I should
calculate to have you near me; but on such an event I
do not calculate. I am no intriguer. I would not act, in
316 LIFE OF EDWARD LIVINGSTON.
one single instance, that character for all the public favor
that could be bestowed. My country has brought my
name before the American nation, and the people must
decide. The presidential chair is a situation which ought
not to be sought for, nor ought it to be declined when
offered by the unsolicited voice of the people. To their
choice the Constitution has left it, and happy for the per
manency of the constitutional government and the perpet
uation of our Union, if designing demagogues will let the
people exercise this, their constitutional privilege, without
attempting to thwart it by subtle intrigue and manage
ment.
" On the receipt of this, if leisure permit, I would
thank you for your views of the correctness of my de
cision and the ground I have assumed and on which I
have always practised, and, I would add, I have grown
too old in the practice ever to change.
" Present myself and Mrs. J. respectfully to your lady
and daughter, and to Major Davezac, and accept assur
ances of my friendship and esteem.
" ANDREW JACKSON,
" EDWARD LIVINGSTON, Esq.
" P. S. I have not had leisure to read your report
through. As far as I have gone, I approve it fully. If
the penitentiary system can be established to meet your
views, it will be a happy amendment to the criminal
code, and the name of E. L. will be handed down to
posterity as the greatest legislator of his day.
" A. J."
The attachment between Jackson and Livingston, so
well formed and so long cherished, acquired further
strength by their residence together at Washington from
1823 to 1825. The latter supported his friend ardently
SIX YEARS IN THE HOUSE AGAIN.
in the unsuccessful presidential campaign of 1824, and
from that time did not flag in the zeal or activity of his
exertions until the more fortunate result of the election
in 188 was achieved. His opportunities for knowing
Jackson being generally understood, he was appealed to
by influential politicians from different parts of the coun
try, to say whether or not Jackson was an ignorant and
passionate man ; whether or not he had any respect for
laws or constitutions ; and whether it was true or not that
he had little understanding, or that he had not received
anything that could be called education ; and whether or
not he was really capable of writing a decent letter. He
industriously answered these inquiries, detailing and ex
plaining the General s conduct during the defence of
New Orleans, and the circumstances of the declaration
of martial law. In one of these responses, addressed
to Timothy Pickering, he wrote, referring to the period
of the campaign : " During this time I enjoyed his con
fidence, which I should esteem it one of the greatest
misfortunes of my life to have at any time since been
deprived of. I think, therefore, that I know him well.
I have seen him in circumstances of most extraordinary
difficulty, amid the greatest dangers and perplexities, and
in the hour of victory and triumph, and witnessed the
resources, the energy, firmness, courage, and moderation
which distinguished his whole conduct in these several
situations, conduct always adapted to the occasion which
rendered it necessary, without the slightest attention to the
effect which his measures might have upon himself. I
am not writing his panegyric, or I could give instances
of all that I allege. I am giving, what you asked, my
honest opinion."
In September, 1828, whilst the presidential canvass
which resulted in Jackson s first election was raging,
318 LIFE OF EDWARD LIVINGSTON.
and exciting the whole country, Mr. Livingston visited,
on a purely professional errand, the city of Harrisburg,
among whose inhabitants he had not a single acquaint
ance. He was, therefore, surprised to receive, as soon
as his arrival was known, an invitation to a public din
ner from the Democratic leaders in the city. He ac
cepted the honor, apparently for the purpose of deliver
ing a fervid speech in the support of Jackson. The
following was the toast to which the speech was a
response :
" The Honorable Edward Livingston, our distinguished
guest. His civil attainments adorn the records of his
adopted State, and his military services at Orleans will
remain bright on the page of history as long as that
glorious victory is remembered by freemen. The people
of Pennsylvania hail him as the talented advocate of the
rights of man, and the early and firm friend of General
Jackson."
On this occasion, Mr. Livingston, after touching upon
the distinctive principles of the Democratic party, spoke
mainly, with great feeling and power, of the personal
character imparted to the contest by the opposers of
"a man whose reputation was identified with that of
his country, the measure of whose glory he had filled
to overflowing." He closed the reference to this topic
with the following allusion :
" It may be remarked, to the honor of our country,
that in no other is the female character held more sacred.
A woman may travel alone from one extreme of the Union
to the other, without an insult, unprotected but by her
modesty and the respectful courtesy that is paid to her
sex ; and everywhere she would find a champion to
avenge even an insulting look. Before the present con
test, the most violent zealot of a party, or the most de-
SIX YEARS IN THE HOUSE AGAIN. 319
graded of the vile tribe who prostitute their talents to
the political aggrandizement of others, has not dared
to stain the pages of our papers with the remotest allu
sion to female character. It was reserved for this con
troversy to change this honorable feature in the char
acter of our country, by a ruffian attack on that of a
meek, pious, charitable, honorable matron, an attack
as false as it is base and unmanly.
" Now, Gentlemen, examine to what all this leads, and
say whether we have not something more important than
the mere success of our candidate at stake on this elec
tion. If these means prevail, they will again be resorted
to ; they will be met by similar efforts ; that candidate
will not succeed who is shown to be best suited for the
station, but he who can most effectually vilify the char
acter of his opponent, and of those who support his pre
tensions. Men of respectability will withdraw from the
degrading contest, both as principals and supporters ; the
vile and worthless alone will fill your offices ; and men of
integrity and honor will be drawn to seek, under hered
itary succession to office, a refuge from the disorders of
a democracy thus conducted.
" I have ventured to enlarge upon this theme, Gentle
men, partly to prove, that, if we wish to preserve our re
publican institutions and the morals of our people from
pollution, it is necessary to strain every nerve to put
down this first attempt upon the integrity of our sys
tem, and partly because the expression of your indig
nation and contempt of these unworthy attacks may dis
courage any attempt by our friends to contend with the
same weapons. Strong in the character, services, and
talents of the men we support, we need no such means ;
and we disdain them even if they were necessary to suc
cess.
320 LIFE OF EDWARD LIVINGSTON.
" No, Gentlemen, we have better grounds for confi
dence. The man we support did not court the office
which the voice of the country calls him to fill. To Re
publicans in Pennsylvania I need not repeat the many
titles he has to their support."
The following was the conclusion of this dis
course :
" For my own part, when my duty required me to
make the selection between the two candidates, I did
not hesitate, not from any dislike to Mr. Adams, for
I had none, on the contrary, I had a high opinion of his
talents, and believed in his political and private integrity,
but from a decided preference to the other candidate,
whose qualities I thought better fitted him for the place.
Nor has reflection or any subsequent event changed the
opinion I had then formed. I first knew him when we
were members of the same House of Representatives,
more than thirty years tigo ; and he then inspired me
with respect for the firmness of his character, the purity
of his political principles, and the sound understanding
he evinced in their support. From that time, we never
met until he was called to conduct the defence of the
city in which I lived. In his conduct of that defence
he developed the resources of a mind that proclaimed him
equal to any task which the service of his country could
require. Energy, combined with prudence ; courage, to
face not only the dangers of the field, but to incur the
responsibility of every measure, however unpopular, that
was necessary for the defence of the country ; stern in
tegrity ; the most disinterested contempt of private emol
ument ; courtesy of manner that won the hearts of all
who approached him, and that commanded the admira
tion even of the enemy, in his epistolary intercourse ;
and, above all, a respectful submission to the laws, even
SIX YEARS IN THE HOUSE AGAIN.
when they were so administered as to impose a heavy
penalty for acts which he conceived himself forced to do
for the preservation of those laws. These qualities, when
your public affairs are placed under his direction, will en
able him to conduct them with wisdom and success. He
may not, perhaps, with the dexterity of others, twine the
cobweb thread of diplomatic sophistry ; but he will pur
sue the interest of his country, in its foreign relations, in
the plain path which honest intentions will always mark
out, disdaining any attempt to overreach, with too much
sagacity to be himself deceived, and with a firmness that
will never be overawed. This, Gentlemen, is worth all
the skill in diplomacy of which we have heard so much,
and seen so few beneficial effects. At home, he will per
form his duty, and see that others perform theirs. The
seat of government will not, at stated seasons, be deserted;
nor will the duties of all the departments be heaped upon
one head. All this we have a right to expect from the
character of the candidate we support. That he will
be chosen, there can be now no doubt. Let us all
endeavor that it shall be by so triumphant a major
ity as will show the indignation of the people against
the foul means by which he, and his country s honor
through him, have been assailed. We shall then avoid
the recurrence of the disgraceful scenes that now sur
round us ; we shall become a happy, a united, a repub
lican people ; and although we shall always know our
parties and our preferences, they will not, probably, be
attended with the excesses which characterize the pres
ent contest, for the event will have proved that they
are useless, as well as unworthy of a free people.
" I have not ventured to mix in the important topics
upon which I have touched any individual feeling. I
must conclude with the expression of that with which my
41
LIFE OF EDWARD LIVINGSTON.
heart is filled, gratitude for your unexpected and highly
flattering attention, and the hope given by your kindness,
that I shall leave many friends where, but two days since,
I had not even an acquaintance. I offer you, Gentlemen,
a toast analogous to the sentiments I have expressed,
and which contains an opinion I honestly and conscien
tiously entertain :
" The election of Andrew Jackson. It will establish
our honor abroad, insure union and tranquillity at home,
and rescue the principles of our government from defa
mation."
The election of representative in the next Congress
from the New Orleans district had already taken place,
and the friends of Livingston had this time been defeated.
We have seen that his first election had been unanimous.
Two years later, the supporters of the Federal adminis
tration had presented a party candidate against him, but
with a not encouraging result. A third time, this kind
of opposition had become stronger ; and it was now suc
cessful. The length of time required, at this period, to
make the journey between Washington and New Orleans,
and the season of the year at which the Congressional va
cation occurs, especially in each alternate year, precluded
the members from Louisiana from often seeing their con
stituents. Livingston had visited home but once during
six years. This continued absence though excused
by the circumstances just now mentioned, and by the
fact, that during one long vacation he had been detained
by duty in a committee charged by the House with a
most important investigation, and at another by the task
of prosecuting the claims of his constituents for the value
of slaves carried off by the British during the siege of
New Orleans, not to speak of the repose needed for his
labors upon the Code was wielded effectually by the
SIX YEARS IN THE HOUSE AGAIN.
politicians who desired his seat. When General Jack
son heard of the result, he wrote to his friend, under date
of August 2, 1828:-
" I sincerely regret to hear that you have lost your
election. I was fearful of this, when I read your letter
and found you had not returned to New Orleans. Two
speeches to your constituents would have given you a
large majority. Your absence, combined with the sys
tem of detraction, by the supporters of the administra
tion, which was unsparingly wielded against you, gulled
the people, and defeated your election. Your friends still
think they will be able to elect you to the Senate of
the United States ; but unless you visit New Orleans in
the fall, you will be beaten. Your enemies have wielded
your absence against you, and will still use it to your
injury. You must visit your friends this fall to succeed,
when we will expect to see you as you pass, with your
family, at the Hermitage, to whom present Mrs. J. and
my salutations."
Livingston was doubtless well aware, whilst the can
vass was pending, that by attention to those means the
neglect of which is here regretted, he might save his
election. But although he desired to retain his place,
he preferred not to go out of his way in concessions to
the popular requirements. He issued an address to his
constituents, telling them the plain truth of the matter,
in which, after referring to the constancy of his labors,
he added : " Yet this great personal inconvenience, this
sacrifice of interest, this necessary and incessant atten
tion to the duties of my place, have, by. the inveterate
spirit of party, been imputed to me as a fault. I have,
it is said, treated you with contempt, by not abandoning
the duties confided to me, in order to come and court
your favor. I would have been more worthy of con-
LIFE OF EDWARD LIVINGSTON.
fidence, according to these wretched scribblers, if I had
deserted your interests, and those of the nation, and
regularly come on to solicit your votes." But this man
ner of reasoning was not conclusive with the majority of
those to whom it was addressed ; and the representative
whom they had at first chosen with a unanimous voice,
who had served them with zeal and advantage, who was
willing to continue in their service, whose character, genius,
and fame reflected honor upon them, and whose with-
drawrnent from Congress would be a material subtrac
tion from the dignity of that body, was recalled by the
votes of the electors, and Edward D. White was re
turned in his place.
The legislature of Louisiana, at its next session, elected
Mr. Livingston a Senator of the United States. Whether,
in the mean time, he had visited New Orleans, in accor
dance with General Jackson s counsel, or had taken any
steps to further his own elevation, or not, I have been
unable to ascertain.
CHAPTER XV.
SENATOR OF THE UNITED STATES.
The Satisfaction of Livingston s Ambition His Social and Domestic
Habits Letter to his Daughter Jackson s Desire to employ him in
the Government Offer 4>f the MissioiL:to4?-?ance Peculiar Attractions
of the Post for Livingston Letters from Lafayette Nces&rty^e- Declin
ing the Mission Appearance in the Senate Speech on Foot s Resolu
tion Correspondence with Bentham Project for adapting the Liv
ingston Code to the Use of the Federal Government Senatorial Inde
pendence.
LIVINGSTON had no political ambition which was
not now entirely satisfied. The promulgation of
his system of penal law continued, as its preparation and
restoration had long done, to occupy his thoughts and to
employ his industry, far more than did his official labors
or any plans for his own advancement. But not all this
occupation could ever, at any time, engross his faculties,
or blunt his relish for constant literary culture, for genial
society, or, above all, for the daily pleasures of the fire
side at home. From his wife or daughter he was seldom,
and never long, separated. When absent, he invariably
wrote to the former every day; and the latter, whenever
she could not enjoy his conversation, always received from
him the best possible substitute. Of his letters to her,
the following, written at this period, is a characteristic
passage :
" Have you never a poet in your train 1 Here is a
subject for one. I had read in the papers that the great
success of the railroads in England had induced the own-
326 LIFE OF EDWARD LIVINGSTON.
ers of canals to turn off the waters from them, and change
them into roads. I imagined the water-nymphs joining
in a chorus of joy, at the prospect of having their streams
restored to their natural channels, meandering through
flowery meads, dancing gayly over sunny pebbles, leaping
in all the joy of nature over the rocks of their cascades,
released from the imprisonment of long, rectilinear, muddy
canals, where they were forced to bear the burdens of
inevitable barges and reduced to the condition of dull
stagnant pools. Instead of the vulgar slang of boatmen
and traders, to listen to the fine frenzies of the poet and
the lover of nature, etc., etc., etc. What do you think
of the cadre ? "
Mr. Livingston became a Senator on the same day that
General Jackson entered upon the Presidency. The
latter at once, as was to be expected, desired to employ his
friend in the administration. And yet he had in his
gift no place for which the senatorship could be ex
changed as a clear matter of advancement, and no place
the duties of which were better suited to the tastes of the
new senator. The mission to France, alone, had for Liv
ingston, especially at that moment, some attractive features,
which might have induced him as matter of choice
though not without hesitation or doubt to resign his
seat in the Senate. His system of penal law had already
received a very general notice and admiration from the
publicists of Europe, and especially from those of
France, where the work was destined shortly to procure
for him, as we shall see, the rare honor of an election
to membership of the French Institute. He had never
visited Europe, nor seen many of the European publicists
with whom he had long corresponded. And France was
the home of one of the oldest, as well as warmest and
most constant, of his personal friends, Lafayette. The
SENATOR OF THE UNITED STATES.
venerable Marquis wrote to him, under date of March
19, 1829:
" . . . . You will easily believe I am anxious to be in
formed of your destination in the new presidential ar
rangements. Are you a member of the Cabinet, or, as
it appears our excellent friend, Mr. Brown, contemplates
to return home, will you, in that case, come to France
as a minister ] How pleasing to me this last circum
stance would be, I know it is superfluous to express.
Contrary winds keep back the New York packets ; I
hope that of the 10th of March may have a better
chance, so as to give me speedy information of your per
sonal situation. The death of poor Mrs. Jackson has
been to me a matter of much grief. She was particu
larly kind to me, and I felt for her much esteem and
affection
" Present my best respects to the President. My
children join in my own and George s anticipations to
welcome you on this side of the Atlantic, and I am, with
all my heart,
" Your affectionate friend,
" LAFAYETTE."
On the 16th of April, Lafayette wrote to Livingston
again on this subject :
" MY DEAR FRIEND: The packet of the 10th being
the last we have received, and Mr. Van Buren s Secre
taryship of State having been announced, I had antici
pated the pleasure to see you and family in France, as
Plenipotentiary Minister. Our friend, and very justly
regretted, Mr. Brown, has thought it necessary, owing
to Mrs. Brown s state of health, to return home, and
LIFE OF EDWARD LIVINGSTON.
knowing your intimacy with the President, and his ex
perienced confidence in you, I was assured that the ap
pointment greatly depended upon you ; nor did I think
that you should find in Mrs. Livingston, Cora, and
our friend Davezac, great objection to your accepting a
mission to France. Further information, by way of
Liverpool, discourages my hope to welcome you on this
side of the Atlantic, so that I write these few lines, which
yet may pass you as we past each other on the western
waters about four years ago.
" The session will keep me in town until the end of
June. My son and colleague begs to be affectionately
and respectfully remembered. Le Vasseur has been,
since the beginning of the year, settled in his library es
tablishment. You know he contemplates writing some
thing on our American delightful tour. But he felt
the impropriety of such a publication in the so intimate
situation he did occupy near the principal object of the
related events ; nor would I take any cognizance of his
manuscript, thereby avoiding not only the participation
in flattering remarks, but also the responsibility of omis
sions relative to facts and names, which, although en
graved in my heart, might have extended his observa
tions or the bounds of his book. So that if it comes out,
I shall then read it for the first time.
" Although I have ever thought it a matter of pro
priety, situated as I am, not to meddle either with party
disputes or individual appointments, I will tell you con
fidentially, as your old friend, and also as a friend to Gen
eral Jackson, that a rumor of numerous changes has ex
cited some uneasiness on this side of the Atlantic
Indeed, American situations on this side of the ocean are
well filled. What arrangements the President will make
SENATOR OF THE UNITED STATES.
I do not know, nor do I mean to intrude myself in any
interference. But as public concerns are going on \\ell,
I think, between you and me, that wherever he means no
change, private uneasiness ought to be relieved.
" Adieu, my dear Edward ; present my affectionate
respects to Mrs. Livingston and Cora. Remember me
to Davezac and other friends wherever you are, and be
lieve me forever,
" Your affectionate friend,
" LAFAYETTE."
It was a correct surmise, that the mission to France
was the office which the President designed for Living
ston. There was a most important and delicate errand
to be committed to the minister, namely, to obtain from
the French government a tardy indemnity for the spolia
tions which had been committed upon American vessels,
under authority of the Berlin and Milan decrees of Napo
leon. This was one of the subjects that received Jack
son s earliest official attention, and he thought Livingston
the best agent he could send for the accomplishment of
the purpose in view. Upon him accordingly this office
was pressed, during the first month of the administration,
- the period of the above letters from Lafayette. Thus
solicited, Livingston inclined, on the whole, though with
some reluctance and misgiving, to accept the mission.
But being in the month of April urged by the Presi
dent to accept immediately and depart soon, he was
obliged to decline the post, because some circumstances
in his private affairs constrained him to stay at home till
October. Such a delay was too long for the views of
General Jackson, and Mr. Rives, of Virginia, was sent
to the French Court. In December following, Mr. Liv
ingston first appeared in the Senate. Of his late asso-
42
330 LIFE OF EDWARD LIVINGSTON.
ciates in the House, Mr. Webster had preceded, and Mr.
Clay soon followed him.
Mr. Livingston made but few set speeches in the Sen
ate. No senator was listened to with more profound
respect than he, whenever he spoke ; but mere oratory
he now left, for the most part, to others. His most
elaborate speech was his first, delivered on the 15th of
March, 1830, occupying the whole day, and covering
about sixty printed pages in the report. It was part
of the memorable debate upon Foot s resolution, raising
the question of the true policy of the government with
respect to the public lands, and best known as the oc
casion of the celebrated oration of Webster, in reply to
Mr. Hayne, on the rights of the States, and the nature,
interest, and glory of the Federal Union. It was a most
discursive debate, a fact to which Mr. Livingston, on
rising to speak, referred in the following humorous
strain :
" The multiplicity and nature of the subjects that have
been considered in debating a resolution with which none
of them seem to have the slightest connection, and the
addition of new subjects by which every speaker has
thought it proper to increase the former stock, has given
me, I confess, some uneasiness. I feared an irruption
of the Cherokees, and was not without apprehensions
that we should be called on to terminate the question of
Sunday mails ; or, if the Anti-Masonic Convention should
take offence at the secrecy of our executive session, or
insist on the expulsion of all the initiated from our coun
cils, that we should be obliged to contend with them for
our seats. Indeed, I had myself serious thoughts of in
troducing the reformation of our National code, and a plan
for the gradual increase of the navy, and am not yet
quite decided whether, before I sit down, I shall not urge
SENATOR OF THE UNITED STATES. 331
the abolition of capital punishments. In truth, Mr. Presi
dent, the whole brought forcibly to my recollection an
anecdote told in one of the numerous memoirs written
during the reign of Louis XIV., too trivial, perhaps, to
be introduced into this grave debate, but which, perhaps,
may be excused. A young lady had been educated in
all the learning of the times, and her progress had been
so much to the satisfaction of the princess who had di
rected her studies, that, on her first introduction, her
patroness used to address her thus: Come, Mademoiselle!
discourse with these ladies and gentlemen on the subject
of theology ; so, that will do. Now talk of geography ;
after that, you will converse on the subjects of astronomy
and metaphysics, and then give your ideas on logic and
the belles-lettres. And thus the poor girl, to her great
annoyance, and the greater of her auditors, was put
through the whole circle of the sciences in which she
had been instructed. Sir, might not a hearer of our
debates for some days past have concluded that we, too,
had been directed in a similar way, and that you had
said to each of the speakers, Sir, please to rise and
speak on the disposition of the public lands ; after that,
you may talk of the tariff; let us know all you think on
the subject of internal improvement ; and, before you sit
down, discuss the powers of the Senate in relation to ap
pointments, and the right of a State to recede from the
Union ; and finish by letting us know whether you ap
prove or oppose the, measures of the present, or the six
preceding administrations ? The approximation, Sir, of
so many heterogeneous materials for discussion must
provoke a smile ; and most of those who have addressed
you, while they lamented that subjects unconnected with
the resolution had been introduced into debate, rarely
sat down without adding to the number. For my own
332 LIFE OF EDWARD LIVINGSTON.
part, I think the discussion may be turned to useful pur
poses. It may, by the interchange of opinion, increase
our own information on all the important points which
have been examined, while, not being called on for a vote,
we may weigh them at leisure, and come to a conclusion,
without being influenced by the warmth of debate."
Nevertheless the speaker proceeded to follow in some
degree the general example of digression, and to discourse
upon some topics not immediately relevant to the point
of Mr. Foot s resolution, though confining himself strictly
to responding to what had fallen from others in the course
of the discussion. One of these digressions was the fol
lowing very full and thorough vindication of himself and
his colleagues, including General Jackson, for their vote,
mentioned in the fifth chapter of this volume, against the
address of Congress to Washington, as prepared and
insisted upon by the Federalist majority of the time :
" I have given you, Sir, so much of the history and
state of parties as was necessary for the understanding
of the refutation I must make of a charge brought
against me and those with whom it was my happiness
to associate, and will always be my pride to have acted,
m those times. I repeat the charge, verbatim, from
the printed speech of the senator from Massachusetts
(Mr. Webster). Speaking of the merits of New Eng
land, which I, at least, have never attempted to lessen,
he says he will not rake into the rubbish of by-gone
times to blot the escutcheon of any State, any party, or
any part of the country ; yet, Sir, in the same page,
he endeavors to fix a blot of the blackest ingratitude
on a party, on men (I do not speak, Sir, of myself)
who have rendered most important services to the coun
try, to one of whom it has given the highest mark of its
confidence and esteem, and all of whom were, in the
SENATOR OF THE UNITED STATES. 333
transaction alluded to, much more sinned against than
sinning-. The honorable gentleman goes on to say :
General Washington s administration was steadily and
zealously maintained, as we all know, by Ne\v Eng
land. It was violently opposed elsewhere. We know
in what quarter he had most earnest, constant, and
persevering support in all his great and leading meas
ures. W T e know where his private and personal char
acter was held in the highest degree of attachment and
veneration ; and we know, too, where his measures were
opposed, his services slighted, and his character vilified.
We know, or we might know, if we turn to the journals,
who expressed respect, gratitude, and regret, when he
retired from the chief magistracy, and who refused to
express respect, gratitude, or regret; I shall not open
these journals.
" Sir, the honorable gentleman would have done well
to open the journals, or not to have referred to them.
If he had opened them, he would have found the name
of the individual who addresses you arrayed with those
of men more worthy of note, in the vote to which he
alludes. If he had opened the debates which led to that
vote, as I think he ought to have done, he would have
seen how utterly void of foundation is the charge he has
brought. I do not think the gentleman intended any per
sonal allusion to me ; the terms of civility on which we
are, forbid it; the consciousness of having said nothing
to provoke the attack, forbids it : but, Sir, the individual
who cannot arrogate to himself sufficient importance to
justify the supposition that he was the object intended,
was, at that time, the representative, the sole represent
ative, of the first commercial city in the Union. That
individual is now one of the members of this body, rep
resenting a sovereign State. He owes it, therefore, to
LIFE OF EDWARD LIVINGSTON.
those who have offered him these marks of their confi
dence to show that they were not unworthily bestowed ;
he owes it to himself to disprove the reflection which the
allegation casts on his character. Suffer me, also, Mr.
President, to remark that this very charge was used
during the late election; and that the refutation I am
about to give was so widely diffused that it is somewhat
singular it should never have come to the senator s
knowledge, or that he should have forgotten it if it had.
Yet one or the other must have been the case, or he would
not now have repeated the tale, nor, by incorporating it
in his eloquent harangue, have given new currency to a
refuted calumny which had long before been nailed to
the counter. Since the honorable gentleman believes
the story to be true, and surely he would not otherwise
repeat it, hundreds of others must give it the like credit;
and it increases the obligation I am under to explain all
the circumstances attending it.
" I have shown, Sir, what were the doctrines and
measures of the Federal party at that time ; during the
whole of the presidency of Washington they were pre
dominant in both Houses; and as Washington was the
head of the government, one of their greatest objects
was to cover all their proceedings with the popularity
of his name, to represent all opposition to their measures
as personal hostility to him, and to force the Republican
party either to approve all their measures, or, by oppos
ing them, incur the odium of being unfriendly to the
Father of his Country. In this they were for the most
part defeated. The universal confidence reposed in the
high character of Washington, the gratitude felt for his
services, the veneration for his name, had practically pro
duced the effect, in our government, which a constitu
tional maxim has in that of England. He could not, it
SENATOR OF THE UNITED STATES. 335
was believed, do wrong ; most certainly he never meant
wrong; most certainly his ardent wishes were for the
happiness of the country he had conducted through so
many perils, and the preservation of that form of gov
ernment which had been adopted under his auspices.
Yet measures were adopted, during his presidency,
which a very large proportion of the country thought
injurious to their interests, and, on one occasion, a ma
jority of their representatives deemed them to be an
infringement on their privileges. None of these were
ascribed to the President; a practice which he intro
duced enabled us to ascribe to his administration (to
which in truth they belonged) all the measures of which
we disapproved. The practice alluded to was that of
assembling the Heads of Department in a Cabinet Coun
cil, and being guided, as was generally understood, by
the opinion of a majority in all important concerns.
Hence the official acts of the President came to be con
sidered as those of his Cabinet, and were, in common
parlance, called the acts of the administration ; and they
were opposed, when it was deemed necessary, and can
vassed, and freely spoken of in debate, without any hos
tility being felt, or supposed to be felt, towards the
President. Indeed, several of those most prominent in
opposition to acts of the administration were men for
whom Washington had the highest esteem, and who
were among those who most admired and revered him.
" Of the acts to which the Republican party were op
posed it may be necessary to specify some, in order to
show that the opposition was not a frivolous or a per
sonal one.
" The Chief Justice of the United States was sent as
a Minister Plenipotentiary to England, while he held
his judicial office, which he retained until after his re-
SS6 LIFE OF EDWARD LIVINGSTON.
turn ; thus, in our opinion, blending the Executive and
Judicial departments, directed by the Constitution to be
separated, and setting an example which might create
an undue influence on the bench, in favor of the Ex
ecutive.
" This minister negotiated a treaty which contained
stipulations requiring the agency of the House of Rep
resentatives, in the exercise of their constitutional powers
over the subject of them, to, carry into effect. To enable
them discreetly to exercise these powers, the House re
spectfully requested the communication of such papers,
in relation to the treaty, as could, without injury to our
foreign relations, be made public. This request the
President was advised to refuse ; and the refusal was
grounded on a denial of the constitutional right of the
House to exercise any discretion in carrying the treaty
into effect. On this refusal, the House of Representa
tives passed a resolution declaratory of the right which
the President had denied. I will not trouble the Sen
ate with adverting to any other measures which I, and
those who acted with me, opposed. We opposed them,
Sir, without, in any instance, forgetting the sentiments
of respect, gratitude, and high admiration, which were
due to the name and character of Washington. We be
lieved that it would have been a dereliction of duty to
give up the independent expression of our opinion, be
cause it was contrary to measures falsely ascribed to a
name we revered ; and conscious of the weight of that
name, I may, without vanity, say there was some de
gree of merit in stemming the tide of popularity that was
attached to it.
" The mission of Mr. Jay took place after the second
election of General Washington, and the discussions on
the treaty in the first session of the fourth Congress, the
SENATOR OF THE UNITED STATES.
seventh year of his Presidency. In his speech on the
opening of the second session of the same Congress, (I
repeat, Sir, what I formerly wrote on this occasion,) he al
luded in affecting terms to his approaching retirement from
office. I can solemnly say for myself, that, on this occa
sion, so far from any ill feeling towards the President,
none among those who arrogated to themselves the title
of his exclusive friends could feel more sincerely, or were
more disposed to express every sentiment of gratitude
for his services, admiration for his character, or wishes
for his happiness, than I was. These were ideas that
had grown up with me from childhood. I had never
heard the name of Washington pronounced but with
veneration by those near relatives who were engaged with
him in the same perilous struggle. Independence, liberty,
and victory, were associated with it in my mind; and
the awful admiration which I felt when, yet a boy, I was
first admitted to his presence, yielded only to the more
rational sentiments of gratitude and national pride, when,
at a maturer age, I could appreciate his services, and
estimate the honor his virtues and character had conferred
on the nation. I had seen him in the hour of peril, when
the contest was doubtful, and when his life and reputa
tion, as well as the liberties of the country, depended on
the issue. I had seen him in the moment of triumph,
when the surrender of a hostile army had secured that
independence. My admiration followed him in his first
retreat, and was not lessened by his quitting it to give the
aid of his name and influence to the union of the States
under an efficient government. In addition to this, he
had received me with kindness in my youthful visits to
his camp ; and, without having it in my power to boast
of any particular intimacy, circumstances had thrown me
frequently in the way of receiving from him such atten-
43
338 LIFE OF EDWARD LIVINGSTON.
tions as indicated some degree of regard. With these
motives for joining in the most energetic expressions of
gratitude, with a heart filled with sentiments of veneration,
and desirous of recording them, my concern can scarcely
be expressed, when I found that I must be debarred from
joining my voice with those of my fellow-citizens in ex
pressing those feelings, unless in the same breath I
should pronounce a recantation of principles which I
then thought, and still think, were well founded, and
declare that I approved measures which I had just sol
emnly declared I thought injurious to the country.
" Thus, Sir, it was contrived. At that period the
President opened the session by a speech, (the more
convenient mode of sending a message having been in
troduced five years afterwards by Mr. Jefferson,) and
the House made an answer, which they presented in a
body. The answer on this occasion was most artfully
and most ably drawn. It was the work of a Federal
committee, and was supported by a Federal majority.
It contained, as it ought to have contained, every ex
pression that gratitude, veneration, and affectionate re
gret could suggest; and to the adoption of these there
would not have been a dissenting voice; it would have
been carried, not only unanimously, but by acclamation.
But the dominant party had other views : it was to be
made the instrument of degrading their opponents, if
they could vote for it, or of holding them up to all pos
terity as opposers of the Saviour of his Country, if they
refused to pronounce their own condemnation. They pre
ferred a paltry party triumph to the glory of the man
they professed to honor, and deprived him of the expres
sion of an unanimous vote, that they might have some
pretence to stigmatize their opponents with ingratitude.
The press, Sir, the omnipotent press, and the publicity
SENATOR OF THE UNITED STATES. 339
of our debates, have enabled me, even at this distant day,
to defeat this unworthy end, unworthy of the honor
able men who contrived and executed it, and which noth
ing but the excitement of party could have suggested to
them.
" To understand this fully, Sir, I should read to you
the whole of the address. Its general character I have
stated. But I will confine myself to one or two passages,
which show what was endeavored to be forced upon us,
and the amendments offered will show what we were
willing to say ; and I will then ask who it was that
refused a unanimous expression of gratitude, respect, and
merit.
" The debates of that period were very concisely taken
down, but (in Carpenter s Debates, p. 62) we find enough
for our purpose. It is there stated that Mr. Livingston
expressed his sorrow that the answer was not so drawn
as to avoid this debate, and his sincere hope that parties
would so unite as to make it agreeable to all. He moved
some amendments, first, to correct an error in the phrase
ology, which were adopted, and, in the course of his
remarks, used these expressions : " He hoped, notwith
standing the tenacity of adherence to words, that all might
agree in the address ; he would be extremely hurt, he
said, could he conceive that we differed in sentiments of
gratitude and admiration for that great man ; but, while
he was desirous to express this, he could not do it at the
expense of his feelings and principles. The former he
might sacrifice, but the latter he could not to any man. "
" I invite the particular attention of the Senate to the
passage which I proposed to alter as it stood in the ad
dress ; it was in these words :
" And while we entertain a grateful conviction that
your wise, firm, and patriotic administration has been
340 LIFE OF EDWARD LIVINGSTON.
signally conducive to the success of the present form of
government, we cannot forbear to express the deep sen
sations of REGRET with which we contemplate your in
tended retirement from office. Now, Sir, mark what
were the words objected to in this sentence ; bear in mind
the distinctions that have been drawn between the char
acter of the President and that of his administration;
remember what was the sense in which that word was
universally used at the day; recollect, too, what I have
just said of the opposition to one of the leading measures
of that administration, and you will then be enabled to
judge whether I, and those with whom I acted, could
give our assent to this passage as it stood. To show,
however, that, while we could not, with consistency or
truth, say that the measures of the cabinet were wise
and patriotic, we were perfectly willing to use these
epithets as applied to the President, I moved to strike
out the words wise, firm, and patriotic administration,
and insert your wisdom, firmness, and patriotism; the
sentence then would have read thus : while we enter
tain a grateful conviction that your wisdom? firmness -,
and patriotism have been signally conducive to the suc
cess of the present form of government, we cannot for
bear to express the DEEP sensations of REGRET with
which we contemplate your intended retirement from
office. Now, Sir, compare this clause, which we were
all ready to vote for, and did vote for, with that which
was supported by the majority, and say which of them
expresses the greatest veneration for the person and
the personal character of Washington, that which as
cribes wisdom, firmness, and patriotism to the meas
ures of his cabinet, or that which attaches them to him
self. Say whether we refused to express regret at his
retirement, when that word, accompanied by an epi-
SENATOR OF THE UNITED STATES. 344
thet most expressive of its intensity, is readily adopted.
Say who were the real friends to the glory of our great
leader in war and director in peace, those who, for a
paltry party triumph, deprived him of an unanimous ex
pression of thanks and admiration, who forced him to ap
pear rather as the chief of a party than in his true charac
ter of the man uniting all affections, regretted, beloved,
venerated by all his fellow-citizens, or those who intreated
that, on this occasion at least, party considerations should
be laid aside, and that they might be permitted to join
their voice to that of their country, and of the world, in
expressing the sentiments with which their hearts were
filled. Say, finally, Sir, whether the senator from Mas
sachusetts is justified in the allegation, that we refused
to express respect, gratitude, and regret, on the retire
ment of Washington ; or what is more than insinuated,
that we slighted his services and vilified his character.
Sir, the register I have quoted shows, that I supported
my amendment by expressing the very sentiments you
have just heard; and I must add, that, shortly after this
transaction, while my votes, speeches, and conduct were
fresh in the recollection of my constituents, my term of
service expired, and I was reflected by an increased ma
jority. Would a man entertaining the sentiments of
Washington that have been ascribed to me have received
the votes of a city where his name was adored I Nay,
more, Sir ; one of the most conspicuous of those who have
incurred the reproach of the senator from Massachusetts,
and for whose sole use it was perhaps designed, the
President of the United States, was not long since se
lected by the veteran reliques of the Revolutionary War,
the chosen companions in arms of their venerated com
mander, the New York Society of Cincinnati, as one of
the very few honorary members upon whom that distinc-
LIFE OF EDWARD LIVINGSTON.
tion has been bestowed. They have, since that, done me
the same honor. Would the venerable remnant of the
friends and companions of Washington, associated under
his auspices for the purpose of cherishing the friendships
contracted during the contest he so gloriously conducted,
and watching over his fame, so inseparably connected
with their own would they have conferred this dis
tinction on two men, who had, at any period of their
lives, shown themselves his enemies or detractors] Me,
Sir, they knew from my childhood ; my whole life was
before them. At the time these votes were given I was
their immediate representative. Many of them were op
posed to me in the politics of the day ; but they knew my
conduct to have been such as I have described, and they
did justice to my motives, and most assuredly would not
have joined in my unanimous association to their honor
able body, had they doubted the purity of either."
On the same occasion Mr. Livingston expressed, in
the following passage, his apprehensions on account of
the visible growth of party spirit :
"These, Mr. President, were some of my reasons for
speaking of the history of party under our government.
I had another. It was to mark the difference between
the necessary, and, if I may so express it, the legitimate
parties existing in all free governments, founded on dif
ferences of opinion in fundamental principles, or an at
tachment to, or dislike of, particular measures and par
ticular men, between these and that spirit of dissension
into which they are apt to degenerate ; to throw the
weight of my experience, and the little my opinions may
have, in the scale, and lift up a warning voice against
the indulgence of the passions which lead to it, the
allusions that irritate, the personal reflections that em
bitter debate, and the altercations that debase it. The
SENATOR OF THE UNITED STATES. 343
spirit of which I speak originates in the most trifling- as
well as the most important circumstances. The liberties
of a nation or the color of a cockade are sufficient to ex
cite it. It creates imaginary, and magnifies real causes
of complaint ; arrogates to itself every virtue, denies
every merit to its opponents ; secretly entertains the
worst designs, publicly imputes them to its adversaries;
poisons domestic happiness with its dissensions ; assails
the character of the living with calumny, and, invading
the very secrets of the grave with its viperous slanders,
destroys the reputation of the dead ; harangues in the
market-place ; disputes at the social board ; distracts
public councils with unprincipled propositions and in
trigues ; embitters their discussions with invective and
recrimination, and degrades them by personalities and
vulgar abuse ; seats itself on the bench ; clothes itself in
the robes of justice ; soils the purity of the ermine, and
poisons the adminstration of justice in its source ; mounts
the pulpit, and, in the name of a God of mercy and
peace, preaches discord and vengeance ; invokes the worst
scourges of Heaven, war, pestilence, and famine, as
preferable alternatives to party defeat : blind, vindictive,
cruel, remorseless, unprincipled, and at last frantic, it
communicates its madness to friends as well as foes ; re
spects nothing, fears nothing ; rushes on the sword ;
braves the dangers of the ocean ; and would not be
turned from its mad career by the majesty of Heaven
itself, armed with its tremendous thunders. The tris-
tes irce of the poet,
* quas neque Noricus
Deterret ensis, nee mare naufragum,
Nee saevus ignis, nee tremendo
Jupiter ipse ruens tumultu ;
and to which, with an elegance of expression and pro-
344 LI FE OF EDWARD LIVINGSTON.
fundity of thought rarely united, he ascribes the ruin of
republics,
et altis urbibus ultimas
Stetere causse cur perirent
Funditus, imprimeretqce muris
Hostile aratrum exercitus insolens.
" Yes, Sir, the poet tells us true. These few lines con
tain a most important lesson. Not long before he wrote
them, there existed a confederacy of independent States,
united, as ours are, by the same religion, language, man
ners, and laws. Fair cities, adorned with noble edifices,
decorated by the miracles of the imitative arts, governed
by wise magistrates, and defended by intrepid warriors,
where sages gave lessons of morality and wisdom, poured
forth their numerous inhabitants at stated seasons to
assist at solemn games, where poets sung, and histo
rians read their instructive pages, to admiring crowds ;
where the young contended for the prize of agility or
strength, and the old recounted their former exploits ;
where the wisdom and valor and talent and beauty of
each State were the boast and pride of the whole. What
followed ? Civil dissension breathed its poisonous influ
ence over them, and they met to contend, not for the
peaceful prizes of dexterity or genius, but in the deadly
strife of civil war. Where are their magnificent temples,
their theatres, their statues of gods and heroes ? They
have vanished; they have been swept by the besom of
destruction ! The ploughshare of devastation has been
driven over their walls, and their mighty ruins remain
as monumental warnings to free States, of the danger of
falling into the excess of party rage."
The remainder of this speech was devoted principally
to an elaborate defence of the policy and action of the
President against assaults made upon them, in the course
SENATOR OF THE UNITED STATES. 34,5
of the debate, by several senators, and to a no less elab
orate exposition of Livingston s views of the Constitution,
and the theory of the Federal Government, of which the
following is a resume, in his own words :
" I think that the Constitution is the result of a com
pact entered into by the several States, by which they
surrendered a part of their sovereignty to the Union,
and vested the part so surrendered in a General Govern
ment.
" That this Government is partly popular, acting di
rectly on the citizens of the several States, partly fed
erative, depending for its existence and action on the
existence and action of the several States.
" That by the institution of this Government the States
have unequivocally surrendered every constitutional right
of impeding or resisting the execution of any decree or
judgment of the Supreme Court in any case of law or
equity between persons or on matters of whom or on
which that court has jurisdiction, even if such decree or
judgment should, in the opinion of the States, be uncon
stitutional.
" That, in cases in which a law of the United States
may infringe the constitutional right of a State, but which,
in its operation, cannot be brought before the Supreme
Court, under the terms of the jurisdiction expressly given
to it over particular persons or matters, that court is not
created the umpire between a State that may deem itself
aggrieved and the General Government.
" That, among the attributes of sovereignty retained
by the States is that of watching over the operations
of the General Government, and protecting its citizens
against their unconstitutional abuse; and that this can
be legally done,
" First, in the case of an act in the opinion of the State
44
316 LIFE OF EDWARD LIVINGSTON.
palpably unconstitutional, but affirmed in the Supreme
Court in the legal exercise of its functions,
"By remonstrating against it to Congress;
"By an address to the People in their elective functions
to change or instruct their representatives ;
" By a similar address to the other States, in which
they will have a right to declare that they consider the
act as unconstitutional and therefore void ;
" By proposing amendments to the Constitution in the
manner pointed out by that instrument ;
" And, finally, if the act be intolerably oppressive, and
they find the General Government persevere in enforc
ing it, by a resort to the natural right which every people
have to resist extreme oppression.
" Secondly, if the act be one of those few which in
their operation cannot be submitted to the Supreme Court,
and be one that will, in the opinion of the State, justify
the risk of a withdrawal from the Union, that this last
extreme remedy may at once be resorted to.
" That the right of resistance to the operation of an act
of Congress, in the extreme cases above alluded to, is
not a right derived from the Constitution, but can be
justified only on the supposition that the Constitution has
been broken, and the State absolved from its obligation ;
and that, whenever resorted to, it must be at the risk of
all the penalties attached to an unsuccessful resistance to
established authority.
" That the alleged right of a State to put a veto on the
execution of a law of the United States which such State
may declare to be unconstitutional, attended (as, if it exist,
it must be) with a correlative obligation on the part of
the General Government to refrain from executing it,
and the further alleged obligation on the part of that
Government to submit the question to the States by
SENATOR OF THE UNITED STATES. 34,7
proposing amendments, are not given by the Constitu
tion, nor do they grow out of any of the reserved
powers.
" That the exercise of the powers last mentioned, would
introduce a feature in our Government, not expressed in
the Constitution, not implied from any right of sover
eignty reserved to the States, not suspected to exist by
the friends or enemies of the Constitution when it was
framed or adopted, not warranted by practice or contem
poraneous exposition, nor implied by the true construc
tion of the Virginia resolutions in 98.
" That the introduction of this feature in our Govern
ment would totally change its nature, make it inefficient,
invite to dissension, and end, at no distant period, in sep
aration ; and that, if it had been proposed in the form
of an explicit provision in the Constitution, it would have
been unanimously rejected, both in the Convention which
framed that instrument, and in those which adopted it.
" That the theory of the Federal Government being the
result of the general will of the People of the United
States in their aggregate capacity, and founded, in no
degree, on compact between the States, would tend to
the most disastrous practical results ; that it would place
three fourths of the States at the mercy of one fourth,
and lead inevitably to a consolidated Government, and
finally to monarchy, if the doctrine were generally ad
mitted, and if partially so, and opposed, to civil dis
sension.
" These being my deliberate opinions on the nature and
consequences of the constructions hitherto given of the
Federal compact, and the obligations and rights of the
States under it, deeming those constructions erroneous,
and in the highest degree dangerous to the Union, I felt
it a duty to my place and to my country to say so."
348 LIFE OF EDWARD LIVINGSTON.
In conclusion of this speech, Mr. Livingston, having
alluded to the interior marble columns of the chamber of
the House, composed of variegated pebbles united by a
natural, calcareous cement, exclaimed :
" What were they originally 1 Worthless heaps of
unconnected sand and pebbles, washed apart by every
wave, blown asunder by every wind. What are they
now 1 Bound together by an indissoluble cement of na
ture, fashioned by the hand of skill, they are changed
into lofty columns, the component parts and the support
of a noble edifice, symbols of the union and strength
on which alone our government can rest, solid within,
polished without ; standing firm only by the rectitude of
their position, they are emblems of what senators of the
United States should be. and teach us that the slightest
obliquity of position would prostrate the structure, and
draw with their own fall that of all they support and
protect, in one mighty ruin.
" A distrust of the justice and good feeling of one part
of the Union by another is a most dangerous symptom ;
it ought not to be indulged even when occasional circum
stances justify it. A distrust of the justice of the whole
is still more fatal. How can we hope for ready obe
dience to our laws, if the people are taught to believe in
a permanent hostility of one part of the Union towards
another, and that every appeal made by reason and ar
gument to their common head is vain I Perseverance
will do much ; for even if the illustration which has been
made of party obduracy were just, we should remem
ber that the hardest marble is worn by a succession of
drops ; much more may we hope that prejudice, however
strong, will yield to the claims of justice, frequently en
forced by a repetition of sound argument.
" Menace is unwise, because it is generally ineffectual ;
SENATOR OF THE UNITED STATES. 34,9
and of all menaces, that which strikes at the existence of
the Union is the most irritating. Have those who thus
rashly use it, who endeavor to familiarize the people to
the idea, have they themselves ever done what they
recommend I Have they calculated, have they consid
ered, what one, two, or three States would be, disjointed
from the rest I Are they sure they would not be dis
jointed themselves ? That parts of any State, which
might try the hazardous experiment, might not prefer
their allegiance to the whole 1 Even if civil war should
not be the consequence of such disunion, an exemption
of which I cannot conceive the possibility, what must be
the state of such detached parts of the mighty whole ?
Dependence on foreign alliances for protection against
brothers and friends ; degradation in the scale of nations ;
disposed of by the protocols of allied monarchs to one of
their dependants, like the defenceless Greeks. But I will
not enlarge on this topic, so fruitful of the most appalling
apprehensions. Disunion! the thought itself, the means
by which it may be effected, its frightful and degrading
consequences, the idea, the very mention of it, ought
to be banished from our debates, from our minds.
God deliver us from this worst, this greatest evil. All
others we can resist and overcome ; encroachments on
individual or State rights cannot, under our representa
tive government, be long or oppressively persevered in.
There are legitimate and effectual means to correct any
palpable infraction of our Constitution. Try them all
before recourse is had to the menace of this worst of
evils. But when an honest difference of construction
exists, surely such extreme means or arguments ought
not to be resorted to. Let the cry of unconstitutional
oppression be justly raised within these walls, and it will
be heard abroad, it will be examined ; the people are
350 LIFE OF EDWARD LIVINGSTON.
intelligent, the people are just, and in time these char
acteristics must have an effect on their Representatives.
But let the cry of danger to the Union be heard, and it
will be echoed from the White to the Rocky Mountains ;
every patriotic heart will beat high with indignation ;
every hand will draw a sword in its defence. Let the
partisans on either side of this argument be assured that
the people will not submit to consolidation, nor suffer
disunion ; and that their good sense will detect the fallacy
of arguments which lead to either.
" Sir, I have done. I have uttered the sincere dictates
of my best judgment, on topics closely connected with
our dearest interest. I have, because it was my duty,
uttered them freely, without reserve, but I hope with
out offence ; with the respect that was due to the opin
ion of others, and with a becoming diffidence of my own.
It would be a cause of great regret if I should have mis
apprehended the tendency of any of the doctrines of which
I have spoken. It would have been a greater, if, think
ing of them as I do, I had omitted the animadversions
which I thought their consequences required.
"Gentlemen have spoken, with patriotic enthusiasm, of
the consolation they would receive, at their last moments,
in seeing the flag of their country display to their dying
eyes its emblems of union and glory. The period when
mine must be closed in night is too near to refer to it
the duration of my country s happiness. But I can an
ticipate for that beloved country a continuance of free
dom and prosperity long after the distant, I hope the
far distant day, when the last of those honorable men
shall have finished his useful career. I can apprehend
for it the worst of evils before any one of them shall
quit the stage. These hopes are founded on the exer
tions of active and enlightened patriotism to preserve
SENATOR OF THE UNITED STATES. 351
the Union ; these fears, on the madness of party that
may destroy it."
It was during Mr. Livingston s senatorial term, and
in the Congressional vacations, that some correspondence,
with an exchange of their respective works, occurred be
tween him and Jeremy Bentham. A portion of the cor
respondence has appeared in the valuable edition of Ben-
tham s works published by his executor, Bowring. Some
passages from Livingston s part of it have already been
quoted or referred to in this volume. The following is
the close of one of Bentham s letters, of which the
first part is printed by Bowring, dated February 23,
1830, and the original of which is now lying before me,
written upon thick paper of the foolscap size, with wide
margins ruled off, spread over fourteen pages, in which
the venerable writer appears to have had the assistance
of both his secretaries, though winding it up with his
own hand :
" What shall we say of these scholars of the school
called the Historical I To find a parallel for them, we
must suppose the scene to lie in a private family. Prob
lem to be solved, what shall be served up for dinner. In
stead of saying to the cook, Give us a rump of beef
to-day, with a plum-pudding, says the mistress to her,
Look back to the housekeeping-book, as many years of it
as you can find, as likewise to the housekeeping-books of
our next-door neighbors to the right and left, as many
of them as you can get a sight of; this done, it will
be your business to guess, not mine to tell you, what it
is I wish to have for dinner.
" Not that the cook would have any great objection to
this substitute for a command, if her wages were to go
on increasing in proportion to the number of housekeep-
352 LIFE OF EDWARD LIVINGSTON.
ing-books in which the search was made, and the length
of time occupied in making it; and here, too, let any
one say whether the parallel does not hold good? How
opposite soever to common sense, would not this be al
together apposite to common law ?
" I am, Sir, with the
" sincerest respect, yours,
"JEREMY BENTHAM.
" To EDWARD LIVINGSTON,
" Senator from Louisiana.
" I hope this copy contains no material errors. The
original scrawl would have been illegible. Neither time
nor eyes admit of revision."
Mr. Livingston continued to discharge assiduously the
ordinary duties of a senator, till the close of the second
session in March, 1831. On the second of that month,
the bill for the relief of James Monroe being under
discussion, he repeated the substance of what he had
said on the same bill while a member of the House, by
way of protest against the claim put forth, on behalf of
the ex -President, for the merit of services in the pur
chase of Louisiana which had really been rendered by
Mr. Livingston s late brother.
But a task that still occupied the best part of his
thoughts and labor was the adaptation of his system of
penal law to the wants of the Federal Government, with
a view to its adoption by Congress. At the first session
after he entered the Senate he brought in a bill with
that object, and gave notice that he would press the
subject upon the attention of Congress at the next ses
sion, Accordingly, on the 3d of March, 1831, he
moved for leave to bring in his bill, which was granted.
The code thus proposed was the same in substance as
SENATOR OF THE UNITED STATES. S53
that prepared for Louisiana, with such modifications as
the peculiar structure of the General Government ren
dered necessary. In introducing the system, he asked
the particular attention of senators to two of its features,
provisions for defining and punishing, hy positive law,
offences against the law of nations ; and the total aboli
tion of the penalty of death, "in order that they might
he prepared to meet the discussion which he should think
it a duty to invite at the next session."
The work was printed by the Senate, for further con
sideration ; but at the coming session the author had
ceased to be a senator, and the subject has not been
again taken up by Congress.
Whilst Livingston was a member of the Senate, it
was clearly proved, in more than one instance, that,
closely and long identified by personal and political
relations as he and Jackson, in general, had been,
neither of them was capable of being blindly led by the
other, in matters of principle or of conduct. When, in
May, 1830, the President vetoed the Maysville Road
bill and the Washington Turnpike bill, under the con
viction, sharply expressed, of the unconstitutionality of
those measures, their reconsideration by Congress took
place. The last-named of these bills having originated
in the Senate, the vetoing message was addressed to
that body. We have already seen that Livingston ear
nestly believed this class of measures to be consistent with
the Constitution, and he had voted for this particular
improvement as expedient and wise. He now voted
promptly, with the majority, but not two thirds of the
Senate, in favor of passing the bill over the President s
veto.
And when Jackson desired to reward with an office
the friendship and services of the unfortunate Henry Lee,
45
LIFE OF EDWARD LIVINGSTON.
whose notorious fault was one of the grosser violations
of the code of domestic morals, Livingston and it is
the only act, seeming like one of stern severity, which
my attentive study of his career has enabled me to at
tribute to him voted against confirming the nomina
tion of the brilliant, but criminal, though perhaps contrite
friend of the President.
CHAPTER XVI.
SECRETARY OF STATE.
Montgomery Place Mr. Livingston s Retirement for the Congres
sional Vacation of 1831 A Summons to Washington Dissolution of
the Cabinet The Secretaryship of State pressed upon Mr. Livingston
Letter to his Wife Acceptance of the Office His Views of the Po
sition Letters Foreign Transactions of the Government Personal
Characteristics of the Secretary of State Anecdotes Character and
Influence of Mrs. Livingston Proceedings in the Senate on the Confir
mation of the Cabinet Dignified Course of Mr. Livingston on that Oc
casion Independent Conduct in Office Course on the President s Bank
Policy Nullification Draught of the Proclamation of December 10,
1832 ^Jotes from the President to Mr. Livingston Amendment of a
Single Paragraph The Growth of Mr. Livingston s Reputation abroad
Election to the Institute of France The French Mission Letter
from Lafayette Marriage of Mr. Livingston s Daughter His Ap
pointment as Minister to France De Tocqueville.
TN 1828, Mr. Livingston s eldest sister, the venerated
Janet Montgomery, had died, bequeathing to him the
bulk of her fortune, including her home, Montgomery
Place. Childless herself, she had looked upon her nephew
Lewis as an adopted son, and had expected to make him
her heir. His sad early death had diverted the bequest
to his father.
Montgomery Place is an estate of about three hundred
acres, on the east bank of the Hudson, in the County of
Dutchess. It is entered only from a road parallel to
and about a mile distant from the river by a wide
avenue, bordered with ancient trees, and winding over
variedly sloping grounds, amongst a plentiful, half na
tive, half exotic shrubbery. The house, which Mrs. Mont-
356 LIFE OF EDWARD LIVINGSTON.
gomery erected about the beginning of the present cen
tury, is a large and plain mansion, overlooking, from
the summit of a broad, high, and undulating lawn, the
river, which there appears like a lake with islands and
irregular bays, and in distinct view of the whole range
of the Catskill Mountains. The northern and southern
borders of the estate, together with the river-bank, here
high and precipitous, are covered with their native for
ests. The northern boundary is a considerable stream,
which rushes to the river over two precipices, of twenty
and forty feet, and forms, in the woods of Montgomery
Place, by an overflow between these falls, a beautiful
lake and peninsula. The forest on this side is uneven
and hilly, and is laid out in a labyrinth of foot-w 7 alks,
with a variety of bridges and summer-houses. The
wood of the southern side is devoted to the purpose of
a private driving-ground. A carriage there passes, over
a constantly changing road, two miles in extent, through
lawn, opening, ravine, and thicket, obtaining here and
there a glimpse of the river or of the mountains.
To this retreat, but a few miles from his birthplace,
itself a memorial of affection and hallowed by many as
sociations, Livingston retired in March, 1831, to be
soon joined by his family, with a prospect of unaccus
tomed repose, to last until the opening of the next ses
sion, in December. I must now relate how suddenly
and how soon this prospect was interrupted.
Shortly after the 9th of April, whilst he was busy
in the culture of trees, shrubs, and flowers, he received
from the Secretary of State the following letter :
[" Strictly Confidential.]
" MY DEAR SIR : We wish to see you here at the
earliest practicable moment, on an affair of deep interest.
SECRETARY OF STATE. 357
The President will be obliged if you will start the day
after you receive this, under circumstances which will
serve to avoid speculation by preventing its being known
that your destination is Washington. That may prob
ably be best done by giving out that you are going to
Philadelphia.
" The President desires me to say to you, that he will
test your adaptation for the service that may be required
of you by the secrecy and despatch of your movements
on this occasion.
" Lest you may have left town, I send a copy of this
letter to our friend Bowne, who knows only that he is
to see that you get it, and that he is to say nothing about
it, an injunction which he will be sure to observe. Make
my best respects to the ladies, and believe me to be,
" Very truly yours,
" M. VAN BUREN.
" E. LIVINGSTON, Esq.
" Washington, April 9, 1831."
He obeyed the summons, observing the secrecy and
haste enjoined, and amusing his very intimate friend,
George M. Dallas, whom on his way he met at Phila
delphia, with a glowing account of some rose-buds which
he was watching at home. Why he had been sent for
he could form no probable surmise, till, on his arrival at
Washington, he was told by the President and Secretary.
The well-known dissolution of Jackson s first Cabinet was
about to be precipitated, and Livingston was wanted to
succeed the Secretary of State. This was an exigency
which he would have been glad to have avoided, but
which, after it had arisen, could not be lightly consid
ered or acted upon. He immediately wrote the follow
ing letter to his wife :
358 LIFE OF EDWARD LIVINGSTON.
" Washington, Saturday night.
" Guess until you are tired, my dear Louise, and you
will not hit on the cause of my summons to this place.
An offer is made to me of a place that would be the ob
ject of the highest ambition to every politician, it is
pressed upon me with all the warmth of friendship, and
every appeal to my love of country. Yet it makes me
melancholy, and, though I have not refused, I have not
accepted. In short, to keep you no longer in suspense,
I am offered the first place in an entire new Cabinet,
with the exception of the P. M. G. V. B. has taken the
high and popular ground, that, being a candidate for the
Presidency, he ought not to remain in the Cabinet, when
all the measures will be attributed to intrigue, and made
to bear upon the President. He has, therefore, prevailed
on the President to accept his resignation. I have, in
an interview I have just had, requested time for con
sideration. The suddenness of the offer, my private ar
rangements, and, as a conclusive argument, the state of
your health, which might, perhaps, oblige me to make a
voyage. This last was answered ingeniously enough.
Davezac should have leave to meet you at any port to
which you might sail, and conduct you to Paris. At
last, it was put on the footing that I should have as much
time for deliberation as the present incumbent would con
sent to remain in office, but with a smart slap on the
knee, My friend Livingston, you must accept. And
so we parted. I shall make no promise until we meet.
The selection I think, except the first place, a good one.
E. L., Sec y of State; H. L. White, War; McLane,
Treasury ; Woodbury, Navy ; Att y-Gen l, not decided
as yet. All this is a profound secret, not even com
municated to C g. Therefore, give not the slightest
hint, even to him. In addition to the reluctance to give
SECRETARY OF STATE. 359
up my independence, I have serious doubts of my ability
to fill tbe office with credit. I know nothing of the de
tails ; the political intrigues would worry me ; in short,
I am perplexed. I must remain here, I think, until
Tuesday.
" In this, as in everything else, my dear wife, your
happiness and that of my daughter shall be my first
consideration. You may write to me in general terms,
and direct to Head s at Philadelphia, for I shall be un
easy until I hear that this letter has been read and de
stroyed.
" I embrace you tenderly and affectionately.
"E. L."
After returning home, he promptly decided on yielding
to the President s wishes. He arrived at Washington
on the 5th of May, and on the 24th entered upon his
new office. The interval he passed at the department,
in a laborious perusal of the late transactions of the prin
cipal missions.
There was no affectation in the distrust which he ex
pressed of his own qualifications for his new duties, nor
in the misgiving with which they were undertaken. In
a letter to Governor Roman, of Louisiana, resigning the
senatorial office, he declared, that, in exchanging a situ
ation which he had always thought more independent
than any in the government, for one of greater labor,
more responsibility, and greater exposure to obloquy and
misrepresentation, he had neither consulted his interest
nor ease, and still less his ambition, which was before
perfectly satisfied ; but that he yielded to the wishes of
those who, forming, he feared, a too favorable opinion
of his powers, thought he could be more useful to the
nation in the station to which he had been called. In
360 LIFE OF EDWARD LIVINGSTON.
the confidence of private friendship, he wrote to Mr.
Dallas, "I assure you, confidentially, I every day
experience a greater regret that I could not have de
clined ; but now, le vin est tire, and, whether the draught
be bitter or sweet, il faut le boire. At any rate, I prom
ise you, it will not intoxicate me." To his brother-in-
law, General Armstrong, he wrote :
" I do not wonder at your hesitation whether to con
gratulate me or not. The same feeling made me reluc
tant to accept the place. I preferred the seat in the
Senate. I was aware of the labor, the exposure to abuse,
and the small opportunity of gaining any distinction, that
I might expect in the Department of State. Yet such
appeals were made to my feelings that I thought it a
duty to yield. Very few will believe this; and therefore
I do not generally take the trouble to make the expla
nation, and am content to appear as one of the many to
whom the place is an object of high ambition."
In a letter to Judge Carleton, dated the day of his in
duction into office, referring to his appointment, he said:
" You congratulate me upon it, as it is natural you
should ; but I assure you, it was with great reluctance
I agreed to accept the place. The labor I do not mind;
but the renewal of all the abuse that party editors think
it a part of their duty to rake up, the obligation to
leave the delightful retreat in which I was grafting my
trees, and watching the first swelling of the buds, when
I received the summons to Washington, are but ill re
paid by any credit I can hope to obtain by the faithful
execution of the duties of my place, in which the occa
sions of attracting the public attention are very rare. I
had also just begun to be at ease in my senatorial chair,
and learned to consider it as the most dignified and in
dependent situation in the country."
SECRETARY OF STATE.
The following passage from a letter to his wife, writ
ten after he had been a month in office, has the unmis
takable sound of audible thinking :
" Here I am in the second place in the United States,
some say the first; in the place filled by Jefferson
and Madison and Monroe, and by him who filled it be
fore any of them, my brother;* in the place gained by
Clay at so great a sacrifice ; in the very easy-chair of
Adams ; in the office which every politician looks to as the
last step but one in the ladder of his ambition ; in the
very cell where the great magician, they say, brewed his
spells. Here I am without an effort, uncontrolled by any
engagements, unfettered by any promise to party or to
man ; here I am ! and here I have been for a month. I
now know what it is ; am I happier than I was 1 The
question is not easily answered. Had the bait never been
thrown in my way ; had I been suffered to finish the graft
I had begun when your letter summoned me from the
country ; had I been permitted to stay and watch its growth
until the fall, to wander all the summer through the walks
you had planned, to see my daughter improving in health
and spirits, now and then to plan a picnic, or plague
myself in the vain attempt to catch a trout, to have ex
claimed, on hearing of what happened here, Among them
be it ! and taken the opinions of my two heads of depart
ments, Shoemaker on the crop of wheat, and Owen on
the celery-bed, could -I have passed my summer thus,
and taken my independent seat in the Senate during the
winter, I could then have answered the question readily.
But the temptation was thrown in my way ; the prize for
which so many were contending was offered to me ; the
acceptance of it was urged upon me; if I had rejected
* The Chancellor, who was Secretary of Foreign Affairs, during the
Revolution, from 1781 to 1783,
46
362 LIFE OF EDWARD LIVINGSTON.
it, I think it would have been a source of regret that
would have made me undervalue the real enjoyments for
which I refused it, -such is human nature. But, as
yet, I cannot form a proper judgment of the value
of my place, my wife and daughter have not been
with me, and if the mental exercise and laborious at
tention it requires have enabled me to bear the solitude
I am in, they will turn to positive enjoyment when you
are with me ; for I now see that I can master the
difficulties of the office, and although they will be in
creased during the session, if my health is preserved, I
shall not fear them.
" All this we have thought and said a hundred times ;
why I repeat it I cannot tell, except that, running in my
mind, it flowed from my pen, as all my other thoughts do
when I write to you."
Mr. Livingston, now in the sixty-eighth year of his
age, was thus committed to cares and labors very differ
ent from the occupation of watching the growth of buds
at Montgomery Place. The reader will hardly need to
be told that the many state papers which now came from
his pen were models of style and of political wisdom. In
a letter to a young relative, written at this period, he said :
" I work harder and walk farther and faster than any man
in the administration ; and by bathing in cold water every
morning, I keep up my spirits and my health. Come and
see how rosy it makes me."
It was, indeed, for the director of the government s
foreign relations, a busy, though not a perplexing year.
Among its more important transactions was the signing,
by Mr. Rives, of a treaty with the French government, by
which France undertook to pay, in six annual instalments,
the sum of twenty-five million francs, in satisfaction of the
long-standing claim of the United States on behalf of
SECRETARY OF STATE. 353
their citizens, for the spoliations suffered under the Berlin
and Milan decrees.
An acquaintance of the writer, W. Coventry H. Wad-
dell, Esquire, of New York, occupied at this period a
confidential position in the Department of State. " Long
devoted," says the latter, "both politically and personally,
to Mr. Van Buren, he could not have thought of asking
me to do anything which I would not have done with alac
rity. Always kind, considerate, and true, there was still in
his nature a certain fence of reserve which I felt that no
one could pass. But when Mr. Livingston came, a stran
ger to me, I soon found that his heart was open as the
day, large, sympathetic, and unsuspicious." This gentle
man describes the new Secretary s manner, when occupied
in official labor, as one of intense abstraction. Walking up
and down his room, his hands behind him, his shoulders
stooping, and his eyes fixed forward and downward, the
going and coming of his subordinate seemed unheeded.
It was a common thing for the latter to withdraw a docu
ment from under the very paper on which the Secretary
was writing, without his appearing conscious even that
any person was present. Sometimes on leaving the de
partment for the day, when an important subject occupied
his mind, Livingston would retain all the way on the
street the stooping gait and abstracted look just described,
and would not see a single person, though he might pass
many acquaintances.
The same gentleman once had occasion to call on Mr.
Livingston at his house, in the afternoon of a day when
the latter had not appeared at the department since morn
ing. He found Mrs. Livingston ready to drive out and
waiting for her husband, who soon came in.
" Where is the carriage, my dear ? " inquired the lady.
" I don t know, I am sure," was the answer.
LIFE OF EDWARD LIVINGSTON.
" Why, you went out in it, did you not]" she asked again.
"Did I, my dear]" said he, reflecting; "then I must
have come out by the western door."
In fact, he had gone to the capitol in his carriage,
which he had left at the eastern entrance ; had hecome
interested in a debate, and remained most of the day ;
had then passed out by the western steps, and walked
home, while his coachman, patiently or otherwise, was
still looking in vain for his appearance. An explosion of
laughter followed his detection in this flagrant abstraction.
But absence, or even concentration of mind, was far
from being his constant state. His duties, though per
formed with his habitual industry and care, were for him
a rather easy burden. His native gayety still enlivened his
conversation and gleamed in his private correspondence ; a
good pun would put him in the highest glee. His friend
Dallas, in the same letter in which he had used a play upon
a word that greatly amused the Secretary, inquired, with
serious concern, if a rumor which he had heard, to the ef
fect that one of his political friends was to be turned out of
office, was true. To this question Livingston replied :
" There is no intention, that I know of, to displace Mr.
Shoemaker. It is the last thing I should think of. The
story is vamped up to give uneasiness to his friends, and,
were there no other, he should be retained for the sole
reason that you desire it. Those who have raised the re
port deserved to be strapped. And I too am a punster ;
et ego in Arcadia ; and I too have been in Philadelphia."
Punning was a feature in Livingston s conversation, all
his life ; though as to the quality of his attempts of this
kind he was never very nice of vain. He used to declare
that the only good pun he had ever produced was while
he was asleep. He had dreamed that he was present in a
crowded church, at the ceremony of the taking of the veil
SECRETARY OF STATE. S65
by a nun. The novice s name was announced as Mary
Fish. The question was then put, who should be her
patron saint. " I woke myself," said Livingston, " by
exclaiming, Why, St. Poly Carp, to be sure !
Yet he was never wanting in the highest, because the
simplest dignity. He was always dressed in public with
care and a strict regard to the proprieties of his age and
position, and no figure could be more respectable than that
which he habitually presented, with his tall form, slightly
bent at the shoulders, his plain dark clothes, his white
cravat, his carefully shaven face, his peaceful dark eyes,
his bold forehead, and his thin black hair, scarcely touched
with gray. His manner of living and of entertaining
guests was not excelled in elegance, if equalled, at Wash
ington. In this his wife saved him all manner of exer
tion. No woman could be better qualified to preside in
such a house than she. Having possessed striking beauty
while young, and still retaining very remarkable dignity
and grace, her mind was as extraordinary as her manners
and person. Unacquainted with the English language
before her marriage to Mr. Livingston, she had learned
it mainly out of the English classics, and, though she
always continued to speak it with a marked accent, had
acquired a complete mastery of diction, drawn from that
"Well of English undefyled,"
preferring that language, as she declared, for all purposes
of earnest expression over her mother-tongue. Her face,
figure, and manners were entirely feminine ; yet she bore
a sway as complete as it was gentle in the whole circle of
her acquaintance. She took upon herself the manage
ment of all household business, and was, at the same time,
her husband s most trusted counsellor at every important
step, in politics or in life. He even habitually sought
her opinion upon what he wrote relating to his system of
366 LIFE OF EDWARD LIVINGSTON.
penal law. Her office in listening to these productions
she wittily compared to that of the servant-maid upon
whom Moliere tried the effect of his comedies before sub
mitting them to the judgment of the world.
The affectionate and ever growing confidence with
which Livingston was accustomed to seek the counsel
of his wife, so well shown in two letters already tran
scribed in the present chapter, may be further illustrated
by extracts from others of his letters to her which I have
seen. In one of these, dated soon after he was first re
turned to Congress from Louisiana, this passage occurs :
" Could you for a moment doubt, my best friend, that
your desire would be decisive with me, in producing ex
ertions that no other motive would induce me to make ]
I well know and have always duly appreciated the mo
tive upon which all your wishes with respect to my con
duct were founded; and knowing this so well, much hap
pier would it have been, had I always followed them.
On this occasion, although I am more than ever con
vinced of the justice of your views, I sometimes feel less
confidence than perhaps I ought of the result ; but your
judgment, on which I implicitly rely, encourages and
perhaps will make me what you think I may and ought
to be." And in another, enclosing the draught of a com
munication to the Emperor of Russia, to which the re
sponse has been given at a former page, he wrote: "Why
are you not with me 1 I want your society always, but
now I want your counsel; indeed, I want that always,
too, for in cases where I doubt before I decide, I am
never quite sure that my decision is right until you have
approved it. The immediate occasion of this reflection
is the enclosed draft ; tell me whether you like it,
and, if you do, whether I had not better send it in French;
and if you think so, I beg you to send me a translation."
SECRETARY OF STATE.
The breaking up of the old cabinet having taken place
during the vacation of Congress, the nominations to the
new one came up for confirmation or rejection in the
Senate on its meeting in December. The opposition,
under the leadership of Clay, was disposed to use any
plausible pretext for refusing to confirm the nomination
by the President of his peculiar friends, a disposition
easily gratified, as the members of the opposition were
a clear majority. The rejection of Mr. Van Buren as
Minister to England, as well as its political consequences
to him and to his enemies, is well known. The new cabi
net officers were all eventually confirmed, but not without
hesitation and delay. Mr. Clay moved a scrutiny into
the circumstances of the recent settlement of accounts
between the United States and Mr. Livingston. A very
free, informal examination of those circumstances fol
lowed. George M. Dallas, then a new and youthful
senator from Pennsylvania, supported the nomination with
great dignity, and made a careful and thorough state
ment to the Senate, in secret session, upon the strength
of an investigation made by himself, and upon the au
thority of his deceased father, Alexander James Dallas,*
a name respected by every senator, of the circum
stances under which the claim of the Government against
Livingston had arisen, and of his conduct in acknowledg
ing the debt, and in struggling to pay it. Mr. Clay
then withdrew his motion, declaring himself quite satis
fied ; j* and Mr. Livingston s confirmation, as Secretary
of State, was unanimous. The public opinion of the
* The elder Dallas had been an Clay, in the course of a political ha-
intimate acquaintance of Mr. Liv- rangue, could mention his name as
ingston at the period of his misfor- that of a common defaulter, and even
tune, and had become Secretary of couple it with the names of some
the Treasury a few years later. of the most notorious of unfaithful
f- Yet afterwards, when Livingston public servants,
had been four years in his grave, Mr.
368 LIFE OF EDWARD LIVINGSTON.
country, to which the achievements and misfortunes of
the latter were known, had already signally and without
audible dissent approved the appointment.
The course of Livingston on this occasion was very
characteristic, and not at all like that which an ordina
ry statesman, not to say politician, would be expected,
in the same position, to pursue. Though well aware
that the investigation was going on in the Senate, he
took no step to supply his friends with the facts upon
which they should rely in his support, and did not even
mention the subject beforehand to Senator Dallas,
who he knew would, if necessary, be one of the most
zealous of his defenders. He chose, so far as his own
action went, to let his character stand alone, and his con
duct speak for itself.
The judicial independence of Mr. Livingston in the
conduct of his office, as well as the peremptory suavity
with which he knew how to exercise it, are well shown
in the following answer to an application for place, made,
on behalf of a person of doubtful qualifications, by a
member of his party who was at the same time an in
coming senator and a personal friend :
" Until I saw your protege, Mr. , I might have
been inclined to recommend him for a consulate ; but
really his appearance is not fitted for public life. Imagine
him in a consular uniform, marching with his sword drag
ging on the pavement, to a national entertainment. He
is a good poet, you say, and novelist. I will certainly
believe it ; but this last title to celebrity has convinced
him, most unfortunately, that every man who can write
a good novel must be also a diplomatist. The consulate
given to Cooper, and the secretaryship to Irving, are
the colors in Westminster Hall to him ; they will not let
him sleep. Tu Dieu ! que tu es dpre a la curee, Sei-
SECRETARY OF STATE.
gneur Gil BlasJ I was tempted to say to him twenty
times. He wanted new consulates created, old incum
bents removed, and I believe, if I had given him the
least encouragement, would have asked to be a minister,
or charge d affaires, at least. Pray try and dissuade
him from this pursuit, in which success would only make
him uncomfortable. I did everything I could to make
him understand that his chance was a bad one, and that
his literary merit would be obscured by mercantile asso
ciations into which he would be led by a consulship ;
but I fear without success."
The Secretary observed the subsequent course of this
disappointed aspirant after consular honors, and, a few
months later, wrote again to his friend :
" I see that your protege is at the head of the converts
to anti-Jacksonism. What a pity we did not make him
a consul! His recantation will be literally a palinodea,
and be given in rhyme."
The following letter, copied from the draught in his
handwriting, exhibits Livingston s hearty contempt for
the mean arts of political partisanship, and comes nearer
expressing the common sentiment of indignation than
almost any other passage that I have noticed from his
pen :
" Washington, January 8, 1832.
" SIR : I have just received your letter of the 30th
December, by which you inquire whether my depart
ment affords any evidence that, while Mr. Clay was a
Minister in England, he received the usual royal present
of cl00 in silver plate. There is nothing, Sir, to
show this in my department, nor have I ever heard the
suggestion, or believe there is the slightest foundation
for it.
" Under this conviction, I cannot make or direct any
47
LIFE OF EDWARD LIVINGSTON.
inquiries which would show an injurious suspicion that
I do not entertain. I am politically opposed to Mr.
Clay, but I am persuaded he would never have done
anything that could justify the imputation ; and if such a
report is current, I should be sorry that even my silence
should keep it alive. I am persuaded, Sir, that you agree
with me in thinking that any political advantage, how
ever great, would be bought too dear, if obtained by
countenancing such calumnies on our opponents.
" I am your obedient servant,
"Eow. LIVINGSTON.
" H. MARSHALL, Esq."
Mr. Livingston appears not to have been specially iden
tified with the President s policy in the veto of the United
States Bank, though yielding to that policy a temperate
approval. The latest and principal biographer of Jack
son intimates his impression that the message vetoing the
bill for rechartering the institution was drawn by Liv
ingston.* This is an error. The following passage of
a letter written by him to Mr. Dallas, under date of
August 26, 1832, not only contradicts the contemporary
rumor to that effect, but betrays a real sensitiveness to
the supposition :
" The veto, I find, is well received. The measure
could not have been avoided ; the managers of the bank
drew it on themselves, and they were forwarded by those
who thought the institution necessary, and who feared,
what has come to pass, that the pressure of the question
would endanger it in any shape. As to the message, I
will say no more of it than that no part of it is mine.
This is a great piece of self-denial, considering the ex
travagant applause with which it has been received ;
* Parton, Life of Jackson, vol. iii. page 409.
SECRETARY OF STATE.
but I prefer my own plain feathers to those of any pea
cock, and I therefore to you disavow any participation
in framing this splendid production, which has received
the title of the second declaration of independence ; but,
wonderful as the production is, I am astonished (since
the most perfect composition, and the best arguments are
frequently assailed) I am astonished, I say, that this has
escaped so well. There are arguments in it that an in
genious critic might plausibly expose, and I am glad that
it has only been nibbled at by the editors. Is this con
cert \ Or what can be the reason of this forbearance ? I
dreaded an immediate attack. Our friends have lost no
time in taking off its force, by anticipating the public
opinion."
Toward the end of the same year, General Jackson
was busy with the nullifiers of South Carolina. He now
relied upon the pen that had served him oftenest and
best. Among the private papers which the writer has
examined in the course of preparing this volume, is the
original draught of the celebrated proclamation of the
10th of December, 1832, entirely in Livingston s hand
writing, much amended by erasures and interlineations,
according to his invariable habit in all but epistolary com
positions. During the progress of the task, he received
from the President the two following notes :
" For the Conclusion of the Proclamation.
" Seduced as you have been, my fellow-countrymen, by
the delusive theories and misrepresentations of ambitious,
deluded, and designing men, I call upon you in the lan
guage of truth, and with the feelings of a father, to re
trace your steps. As you value liberty and the blessings
of peace, blot out from the page of your history a record
so fatal to their security as this ordinance will become,
LIFE OF EDWARD LIVINGSTON.
if it be obeyed. Rally again under the banners of the
Union whose obligations you, in common with all your
countrymen, have, with an appeal to Heaven, sworn to
support, and which must be indissoluble as long as we
are capable of enjoying freedom.
" Recollect that the first act of resistance to the laws
which have been denounced as void by those who abuse
your confidence and falsify your hopes in treason, sub
jects you to all the pains and penalties that are provided
for the highest offence against your country. Can the
descendants of the Rutledges, the Pinckneys, the Rich-
ardsons, the Middletons, the Sumpters, the Marions, the
Pickens. the Bratons, the Taylors, the Haynes, the Gads-
dens, the Winns, the Hills, the Henshaws, and the Craw-
fords, with the descendants of thousands more of the pa
triots of the Revolution, that might be named, consent to
become traitors ] Forbid it, Heaven !
" DEAR SIR : I submit the above as the conclusion of
the proclamation, for your amendment and revision. Let
it receive your best flight of eloquence, to strike to the
heart and speak to the feelings of my deluded country
men of South Carolina. The Union must be preserved
without blood, if this be possible; but it must be pre
served at all hazards and at any price.
" Yours with high regard,
" ANDREW JACKSON.
" E. LIVINGSTON, Esq.
"Dec. 4, 1832. ii o clock P. M."
" Friday, at night, Dec. 7th.
"Mv DEAR SIR: Major Donelson, having finished copy
ing the sheets handed by you about 4 o clock p. M. to-day,
is waiting for the balance. Such as are ready, please
send, sealed, by the bearer. The message having been
SECRETARY OF STATE. 373
made public on the 4th, it is desirable, whilst it is draw
ing 1 the attention of the people in South Carolina, that
their minds should be drawn to their real situation, be
fore their leaders can, by false theories, delude them
again. Therefore it is to prevent blood from being shed
and positive treason committed, that I wish to draw the
attention of the people of South Carolina to their dan
ger, that no blame can attach to me by being silent.
From these reasons you can judge of my anxiety to have
this to follow the message.
" Yours respectfully,
" ANDREW JACKSON.
" E. LIVINGSTON, Esq.,
" Secretary of State."
The sentences above proposed as hints for the conclu
sion of the proclamation were, I think, the only sugges
tion made in writing by General Jackson in relation to
the form of this celebrated state paper, though he did
not fail orally and repeatedly to impress upon Mr. Liv
ingston his own views of the subject, in characteristically
concise and emphatic terms. The few phrases conceived
by the President were not used by the Secretary. The
thoughts they embody appear here and there in the fol
lowing closing paragraphs of the proclamation :
" Fellow-citizens of my native State, let me not only
admonish you, as the first magistrate of our common
country, not to incur the penalty of its laws, but use the
influence that a father would over his children whom he
saw rushing to certain ruin. In that paternal language,
with that paternal feeling, let me tell you, my country
men, that you are deluded by men who are either deceived
themselves or wish to deceive you. Mark under what
pretences you have been led on to the brink of insurrec
tion and treason, on which you stand ! First, a diminu-
LIFE OF EDWARD LIVINGSTON.
tion of the value of your staple commodity, lowered by
over-production in other quarters, and the consequent
diminution in the value of your lands, were the sole ef
fect of the tariff laws.
" The effect of those laws was confessedly injurious ;
but the evil was greatly exaggerated by the unfounded
theory you were taught to believe, that its burdens were
in proportion to your exports, not to your consumption
of imported articles. Your pride was roused by the as
sertion that a submission to those laws was a state of vas
salage, and that resistance to them was equal, in patriotic
merit, to the oppositions our fathers offered to the op
pressive laws of Great Britain. You were told that this
opposition might be peaceably, might be constitutionally
made ; that you might enjoy all the advantages of the
Union, and bear none of its burdens. Eloquent appeals
to your passions, to your State pride, to your native cour
age, to your sense of real injury, were used to prepare
you for the period when the mask, which concealed the
hideous features of disunion, should be taken off. It fell,
and you were made to look with complacency on objects
which, not long since, you would have regarded with hor
ror. Look back to the arts which have brought you to
this state ; look forward to the consequences to which it
must inevitably lead ! Look back to what was first told
you as an inducement to enter into this dangerous course.
The great political truth was repeated to you, that you
had the revolutionary right of resisting all laws that were
palpably unconstitutional and intolerably oppressive ; it
was added that the right to nullify a law rested on the
same principle, but that it was a peaceable remedy ! This
character which was given to it made you receive, with
too much confidence, the assertions that were made of the
unconstitutionally of the law and its oppressive effects.
SECRETARY OF STATE. 375
Mark, my fellow-citizens, that, by the admission of your
leaders, the unconstitutionally must be palpable, or it will
not justify either resistance or nullification ! What is the
meaning 1 of the word palpable in the sense in which it is
here used 1 That which is apparent to every one ; that
which no man of ordinary intellect will fail to perceive.
Is the unconstitutionally of these laws of that descrip
tion \ Let those among your leaders who once approved
and ^advocated the principle of productive duties answer
the question ; and let them choose whether they will be
considered as incapable, then, of perceiving that which
must have been apparent to every man of common under
standing, or as imposing upon your confidence and en
deavoring to mislead you now. In either case, they are
unsafe guides in the perilous path they urge you to tread.
Ponder well on this circumstance, and you will know how
to appreciate the exaggerated language they address to
you. They are not champions of liberty, emulating the
fame of our Revolutionary fathers ; nor are you an op
pressed people, contending, as they repeat to you, against
worse than colonial vassalage.
" You are free members of a flourishing and happy
Union. There is no settled design to oppress you. You
have indeed felt the unequal operation of laws which may
have been unwisely, not unconstitutionally passed ; but
that inequality must necessarily be removed. At the very
moment when you were madly urged on to the unfortu
nate course you have begun, a change in public opinion
had commenced. The nearly approaching payment of the
public debt, and the consequent necessity of a diminution
of duties, had already produced a considerable reduction,
and that, too, on some articles of general consumption in
your State. The importance of this change was under
rated, and you were authoritatively told that no further
LIFE OF EDWARD LIVINGSTON.
alleviation of your burdens was to be expected, at the very
time when the condition of the country imperiously de
manded such a modification of the duties as should reduce
them to a just and equitable scale. But, as if apprehen
sive of the effect of this change in allaying your discon
tents, you were precipitated into the fearful state in which
you now find yourselves.
"I have urged you to look back to the means that were
used to hurry you on to the position you have now as
sumed, and forward to the consequences it will produce.
Something more is necessary. Contemplate the condition
of that country of which you still form an important part.
Consider its government, uniting in one bond of common
interest and general protection so many different States,
giving to all their inhabitants the proud title of American
citizens, protecting their commerce, securing their litera
ture and their arts, facilitating their intercommunication,
defending their frontiers, and making their name re
spected in the remotest parts of the earth. Consider the
extent of its territory ; its increasing and happy popula
tion ; its advance in arts, which render life agreeable ; and
the sciences, which elevate the mind ! See education
spreading the lights of religion, morality, and general
information into every cottage in this wide extent of our
Territories and States! Behold it as the asylum where
the wretched and the oppressed find a refuge and support !
Look on this picture of happiness and honor, and say,
WE, TOO, ARE CITIZENS OF AMERICA ! Carolina is one
of these proud States ; her arms have defended, her best
blood has cemented, this happy Union ! And then add,
if you can, without horror and remorse, This happy Union
we will dissolve ; this picture of peace and prosperity we
will deface ; this free intercourse we will interrupt ; these
fertile fields we will deluge with blood ; the protection of
SECRETARY OF STATE.
that glorious flag we renounce ; the very name of Ameri
cans, we discard. And for what, mistaken men, for
what do you throw away these inestimahle blessings ?
For what would you exchange your share in the advan
tages and honor of the Union 1 For the dream of sepa
rate independence, a dream interrupted by bloody con
flicts with your neighbors, and a vile dependence on a
foreign power. If your leaders could succeed in estab
lishing a separation, what would be your situation ? Are
you united at home ? are you free from the apprehension
of civil discord, with all its fearful consequences I Do
our neighboring republics, every day suffering some new
revolution, or contending with some new insurrection,
do they excite your envy ? But the dictates of a high
duty oblige me solemnly to announce that you cannot
succeed. The laws of the United States must be exe
cuted. I have no discretionary power on the subject;
my duty is emphatically pronounced in the Constitution.
Those who told you that you might peaceably prevent
their execution deceived you ; they could not have been
deceived themselves. They know that a forcible opposi
tion could alone prevent the execution of the laws ; and
they know that such opposition must be repelled. Their
object is disunion : but be not deceived by names ; dis
union, by armed force, is TREASON. Are you really ready
to incur its guilt ? If you are, on the heads of the insti
gators of the act be the dreadful consequences ; on their
heads be the dishonor, but on yours may fall the punish
ment. On your unhappy State will inevitably fall all the
evils of the conflict you force upon the government of
your country. It cannot accede to the mad project of
disunion, of which you would be the first victims ; its first
magistrate cannot, if he would, avoid the performance of
his duty. The consequence must be fearful for you, dis-
48
378 LIFE OF EDWARD LIVINGSTON.
tressing to your fellow-citizens here, and to the friends
of good government throughout the world. Its enemies
have beheld our prosperity with a vexation they could not
conceal ; it was a standing refutation of their slavish doc
trines, and they will point to our discord with the triumph
of malignant joy. It is yet in your power to disappoint
them. There is yet time to show that the descendants of
the Pinckneys, the Sumters, the Rutledges, and of the
thousand other names which adorn the pages of your Rev
olutionary history, will not abandon that Union to support
which so many of them fought, and bled, and died.
" I adjure you, as you honor their memory, as you love
the cause of freedom, to which they dedicated their lives,
as you prize the peace of your country, the lives of its
best citizens, and your own fair fame, to retrace your
steps. Snatch from the archives of your State the dis
organizing edict of its convention ; bid its members to
reassemble, and promulgate the decided expressions of
your will to remain in the path which alone can conduct
you to safety, prosperity, and honor. Tell them, that,
compared to disunion, all other evils are light, because
that brings with it an accumulation of all. Declare that
o
you will never take the field unless the star-spangled ban
ner of your country shall float over you ; that you will
not be stigmatized when dead, and dishonored and scorned
while you live, as the authors of the first attack on the
Constitution of your country. Its destroyers you cannot
be. You may disturb its peace ; you may interrupt the
course of its prosperity ; you may cloud its reputation
for stability: but its tranquillity will be restored; its pros
perity will return ; and the stain upon its national charac
ter will be transferred, and remain an eternal blot on the
memory of those who caused the disorder.
" Fellow-citizens of the United States, the threat of
SECRETARY OF STATE. 3*79
unhallowed disunion, the names of those, once respected,
by whom it is uttered, the array of military force to sup
port it, denote the approach of a crisis in our affairs on
which the continuance of our unexampled prosperity, our
political existence, and perhaps that of all free govern
ments may depend. The conjuncture demanded a free, a
full, and explicit enunciation, not only of my intentions,
but of my principles of action ; and, as the claim was as
serted of a right by a State to annul the laws of the Union,
and even to secede from it at pleasure, a frank exposition
of my opinions in relation to the origin and form of our
government, and the construction I give to the instrument
by which it was created, seemed to be proper. Having the
fullest confidence in the justness of the legal and consti
tutional opinion of my duties which has been expressed,
I rely, with equal confidence, on your undivided support
in my determination to execute the laws, to preserve the
Union by all constitutional means, to arrest, if possible,
by moderate but firm measures, the necessity of a re
course to force, and, if it be the will of Heaven that
the recurrence of its primeval curse on man for the shed
ding of a brother s blood should fall upon our land, that
it be not called down by any offensive act on the part of
the United States.
" Fellow-citizens, the momentous case is before you.
On your undivided support of your government depends
the decision of the great question it involves, whether
your sacred Union will be preserved, and the blessings it
secures to us as one people shall be perpetuated. No one
can doubt that the unanimity with which that decision will
be expressed will be such as to inspire new confidence in
republican institutions, and that the prudence, the wisdom,
and the courage which it will bring to their defence will
transmit them unimpaired and invigorated to our children.
380 LIFE OF EDWARD LIVINGSTON.
" May the Great Huler of nations grant that the signal
blessings with which he has favored ours may not, by the
madness of party or personal ambition, be disregarded
and lost ; and may his wise Providence bring those who
have produced this crisis to see their folly before they feel
the misery of civil strife, and inspire a returning venera
tion for that Union which, if we may dare to penetrate
his designs, he has chosen as the only means of attaining
the high destinies to which we may reasonably aspire."
Having read the obviously candid but somewhat vague
statement communicated by Major Lewis to Mr. Parton,*
to the effect that General Jackson, on examining Mr. Liv
ingston s draught, informed the latter that he had not cor
rectly understood his notes in some particulars, and that
certain parts of the paper must be altered, which was
accordingly done by the Secretary, I compared the actual
proclamation, word for word, with the draught in Living
ston s handwriting, in order to see what were the correc
tions which had been thus suggested. There is no varia
tion between them, except some verbal amendments such
as so painstaking a writer would have been sure to make
while reading the printer s proof, and except one change,
of materiality, in the paragraph next to the last, which, in
the draught, reads as follows :
" My countrymen ! the whole of the momentous case
is before you. On your concord, on your undivided sup
port, depends the decision of the great question it involves.
Public opinion everywhere is powerful ; here it is omnipo
tent. If you should decide fatally, in my opinion, de
cide that a State may annul an act of Congress or recede
from the Union, if even any important part of the nation
should concur in the Carolina doctrines on this subject, it
cannot change my conviction of duty or prevent my at-
* Vide Life of Jackson, vol. iii. page 466.
SECRETARY OF STATE. 381
tempts to execute it, though it may render those attempts
inefficient. But if, as I trust, only one spirit shall per
vade the nation, and that spirit shall inspire a cry from
Maine to Louisiana that the Union must be preserved, the
voice will be obeyed, the Union will be preserved ; we
shall still be a nation, respected the more for the decision
we shall have shown in a time of no common danger.
New confidence will be inspired in republican institutions,
and we may yet hope to hand them down to our children
unimpaired, preserved, invigorated by our prudence, our
wisdom, and courage in their defence. Unanimity and a
strong, unequivocal expression of it, may avert the evils
that threaten us. Madness only could inspire our brethren
to persevere in principles which a universal reprobation
of the Union should condemn as unsound, and a contest
for the support of which they must perceive to be ut
terly hopeless."
The amendments on the face of the manuscript are
all purely philological, and such as Mr. Livingston habit
ually and constantly made, as has before been stated, in
the draughts of all compositions except ordinary letters.
The alteration of the above penultimate paragraph I take,
then, to be the one and the only one made in this paper,
on the suggestion of the President. How such an amend
ment came to be required, seems almost too obvious to be
stated. As to what might be the final issue of the con
troversy between South Carolina and the Federal Govern
ment, as influenced by the possible public opinion of the
country, the mind of the Secretary could contemplate and
state two opposite hypotheses, while the more dogmatic
intellect of the President could neither imagine nor admit
but one.
While Livingston was thus performing these highest
and most active functions at home, the European reputa-
382 LIFE OF EDWARD LIVINGSTON.
tion of his criminal code was fast ripening-. In the spring
of 1833, he was chosen foreign associate of the Institute
of France (Academy of Moral and Political Sciences).
This distinction, which has always been sparingly con
ferred, which few Americans have reached, and which
even monarchs can only attain through the double merit
of genius and industry, he had not sought.
A popular rumor had now assigned the French mission
to Mr. Livingston, from month to month, for more than a
year ; * the government had a most important errand with
which to charge him ; his personal inclination began to
point strongly toward going abroad ; and the invitations
which he received from Europe were most persuasive.
Among the latter was the following letter which I tran
scribe entire, as the other matters it contains are not
without interest :
" Paris, December 8, 1832.
"My DEAR SIR : I have been requested by the young
Duke of Brunswick to forward the enclosed letter, and
transmit your answer wherever the persecutions of which
he is the object may at the time oblige him to make his
abode.
" That the young man has been rather wild in his duke
dom I easily believe ; but the coalition of princes against
* The following characteristic pas- have a most able coadjutor. Doiv-
sage occurs in a postscript of a letter dies, dowdies won t do for European
which, in March 1832, Mr. Living- courts, Paris especially. There
ston received from the celebrated and at London the character of the
John Randolph, of Roanoke: Minister s lady is almost as impor-
" If General Jackson does not kill tant as his own. It is the very place
the bank, the bank will kill him. Let for her. There she would dazzle
me conjure you to lay this matter at and charm ; and surely the salons of
heart, and accept, not the Chiltcrn Paris must have far greater attrac-
Hundreds, but the mission to France, tions for her than the yahoos of
for which you are better qualified Washington. If I had not lost the
than any man in the United States, facility of speaking French by long
In Mrs. Livingston, to whom pre- disuse, I should like it of all things."
sent my warmest respects, you would
SECRETARY OF STATE. 383
him is owing, not to previous errors, but to diplomatic
intrigue and the popular sentiments he has manifested.
He has been lately expelled from France, agreeably to a
wicked alien bill which I have opposed with all my might,
and is determined to go to law, by the counsel of Odillon
Barrot, Mauguin, and Comte, my colleagues, the latter of
whom will plead his cause, in his capacity of an oppressed
man. He has entreated my support, which I very readily
give him.
" It seems to me the money placed by him in the
United States is out of the reach of monarchical juntos
or resolves of the Frankfort diet. But my legal knowl
edge is not so complete as to give him a definitive an
swer. You are, as Secretary of State and a lawyer, the
best oracle to whom he may apply.
" You know, my dear friend, I have made it a point not
to intrude upon the authorities within the United States,
namely, that of Congress and the Executive, with special
applications. I could not, however, circumstanced as the
munificence of Congress has made me, forbear to express
my feelings in the case of the Rochambeau family and a
few remaining officers of the French army. Had I the
honor of a seat in either House, I would submit to my
colleagues the propriety of doing something in behalf of
the application, and even of the very scanty number of
men in the same case. But it only belongs to me to im
part the sentiments to a confidential friend.
" I refer you to the public papers for an account of
transactions and dispositions on this side of the Atlantic.
The system of the revolution of July is overpowered at
Court and in the Houses by the system called of the 13th
March, which amounts to a return to the principles of the
charter of 1814*, to the benefit of Louis Philippe and an
aristocracy, not of birth, but of property and money. Yet
384 LIFE OF EDWARD LIVINGSTON.
the spirit of 89 and 1830 is living in many hearts, and
shall ultimately triumph, not only in France, hut through
out Europe. The enclosed short speeches will give you
an idea of what passes in Holland and Italy.
" The reelection of the President will set you at liberty
to make a choice between the secretaryship and the French
legation ; from what you was writing to me some time
ago, I think I may cherish the hope to see you here.
With what affection and pleasure I hope it is superfluous
to say.
61 Present my best respects and affectionate sentiments
to the President. Remember me most affectionately to
family and friends, and believe me what I have been for
fifty-five years,
" Your grateful and loving friend,
" LAFAYETTE."
In April, 1833, the daughter and only surviving child
of Mr. Livingston was married to Thomas P. Barton,
Esquire, of Philadelphia. Immediately after the mar
riage ceremony, the President, upon offering his congratu
lations, announced to the latter that Mr. Livingston would
soon go to reside in France as Minister, and that he had
selected the new member of his family for Secretary of
the legation.
It was during the first year of Mr. Livingston s service
in the cabinet, that M. de Tocqueville visited the United
States, charged with the official errand of practically ex
amining our penitentiary system, a visit which resulted,
as all the world knows, in profound studies of a more
general nature. The Secretary of State at once perceived
the enlightened genius of the youthful foreigner, enter
tained him often, opened to him freely the stores of his
own information, showered upon him such documents as
SECRETARY OF STATE. 385
he needed, and gave him all possible facilities in the pros
ecution of his various inquiries. This service, the latter,
upon publishing the work which soon afterwards gave ce
lebrity to his name, acknowledged in a conspicuous and ex
clusive manner. At the foot of one of his earliest pages,
de Tocqueville declares that "among the official persons / Su ^
in America who favored my researches, I should, above
all, mention Mr. Edward Livingston, then Secretary of
State (now Minister Plenipotentiary at Paris). During
my sojourn at the capital, Mr. Livingston had the kind
ness to cause to be sent me most of the documents which
I possess relating to the Federal Government. Mr. Liv
ingston is one of those rare men whom one loves in read
ing what they have written, whom one admires and hon
ors even before knowing them, and to whom one is happy
in owing a debt of gratitude."
49
CHAPTER XVII.
MINISTER TO FRANCE.
Unsuccessful Attempts by Mr. Livingston to keep a Diary Extracts
Appointment to the French Mission Voyage to France Objects of the
Mission Active Exertions of Mr. Livingston The Treaty of July 4, 1831
Failure to fulfil it by the French Government Efforts of the King, and
Opposition by the Chamber of Deputies A .Draft for Money drawn by
the Secretary of the Treasury upon the French Minister of Finance Refusal
to pay it by the latter Failure of the Necessary Appropriation in the Cham
ber of Deputies Irritation evinced by President Jackson Message to
Congress Effect of the Message in France Offer of Passports to Mr.
Livingston His Refusal to accept them unless ordered to leave by the
Government Elaborate Letter to the Comte de Rigny Approval of
his Course by the President Conditional Appropriation by the Deputies
of the Money due the United States Mr. Livingston demands Pass
ports His Parting Address to the Due de Broglie His Continued At
tention to the Subject of Penal Legislation Increase of his Reputation
as a Publicist Letters from Villemain and Victor Hugo His Efforts
to promulgate his System Letter to the Howard Society of New Jersey
Death of Lafayette Last Letter from the General Journey through
Switzerland and Germany De Sellon s Monument Anecdote of Mit-
termaier Livingston s Social Traits and Temper His Correspondence
with Public Men Letter to his Sister Farewell to Davezac The
Homeward Voyage Popular Reception at New York Public Dinners,
etc. Unanimous Approbation in America of Livingston s Conduct of the
Mission Defiant Sentiment of the Nation toward France Speech of
John Quincy Adams The President s Approval of Livingston s Course.
TWICE during his life Mr. Livingston undertook
to keep a diary. He failed each time, after a short
trial, not of course from any lack of methodical indus
try, but, as I think, for want of that natural egotism,
which, when a really great man possesses it, always lends
a lively charm to his memoirs.
The first of these attempts was begun on the day of his
MINISTER TO FRANCE.
387
arrival at Washington to undertake the Secretaryship of
State, and abandoned on the day of his induction into the
office. The last entry made by him in this book is,
" May 24. This day received my commission as Secre
tary of State, and entered on the duties of the office.
God grant that I may exercise them to the good of my
country ! " The other entries are the briefest possible
memoranda, and not much more than a record of the
dates of his correspondence. From them it appears that
he habitually wrote as many as from ten to fifteen letters
daily.
The next year he commenced a fresh experiment of
the same kind, and with a similar result. His new book
opens thus :
"Better late than never, March 10, 1832. I bought
this book, I am ashamed to say how long ago, for the
purpose of keeping a kind of journal of official and pri
vate and political business and events, all blended togeth
er ; but I have never yet found time to begin it. Now I
have less leisure than ever; but, as I every day regret
that I have not made memorandums of this kind, I will
try to execute my purpose."
Some retrospective entries finish the page, after which
all that follows, for a period of several months, I tran
scribe :
" On the 29th day of May, 1833, I resigned the office
of Secretary of State of the United States, which I had
held since the 24th May, 1831, and the same day re
ceived the appointment of Envoy Extraordinary and Min
ister Plenipotentiary to France. A few days after this, I
received my instructions arid left Washington to prepare
for my departure. On receiving my resignation, the
President addressed me a letter in which he adverts in
the most flattering terms to military services with him
388 LIFE OF EDWARD LIVINGSTON.
in the New Orleans campaign, as well as to my manage
ment of the Department of State.
"On the of July, I met the President at New
York, on his way to Boston. He expressed great anx
iety for my speedy departure ; and, as some delay had
occurred in fitting out the Delaware, ship of the line, in
which it had been arranged that I should be conveyed
to my destination, I determined to take one of the packets
from New York, intending to have gone on the 16th;
but, some disappointment in my private arrangements
having intervened, I wrote to the Secretary of State, say
ing that it would be impossible for me to get ready before
the 24th, (by which day it was confidently asserted that
the Delaware would sail from the Chesapeake,) and that
I would be ready to go on board as soon as she could
come to New York to receive me. I made my prepa
rations accordingly, and arrived in New York a week
before the ship came in. She was detained there until the
14th of August; on which day, having taken leave of
my relations and friends, I embarked with my family.
A salute was fired on my coming on board, and the
noble ship spread her sails and stood immediately out to
sea. This is the first time I have taken leave of my
native land. Whatever favorable anticipations may be
formed of a residence abroad as the representative of
our country when the period of leaving it is yet at a
distance, yet as it approaches they give way to sensations
by no means so pleasing. Grief on parting with rela
tives and friends, whom you may probably never again
meet; misgivings of your own ability to manage the im
portant national concerns intrusted to you ; apprehen
sions of leaving undone some matter of importance to
yourself or others; and, finally, the feeling that compre
hends most of the others, that painful one attending a
MINISTER TO FRANCE. 38Q
separation from your native country for an uncertain
period, these are some of the drawbacks from the
satisfaction I should otherwise feel in undertaking- the
honorable mission that has been assigned to me. Some
years before this they would have been but slight deduc
tions from the anticipated pleasure I should have en
tertained ; but I am now sixty-nine years of age, and,
although I enjoy uninterrupted health of body, and, as
far as I can myself judge, an unimpaired intellect, yet
change of scene and an acquaintance with new actors in
it have lost much of their charm for me. But, to com
pensate for this, I go under advantages I should have
had at no other period of my life. The station I have
filled at home gives me some political importance, and
the success of my publications on penal law, which has
procured me the unsolicited admission to the French In
stitute, has given me a literary reputation, certainly be
yond my merits, but which must add greatly both to
my personal gratification and to the consideration of my
country.
"On the 12th September, 1833, we entered the
port of Cherbourg, after a most agreeable voyage of
twenty-eight days. Fine weather, excellent accommo
dations, and, above all, the unremitted attentions and
agreeable society of Captain Ballard, and the other offi
cers of the Delaware, made us forget that we were at
sea. Our arrival was a few days too late for the enjoy
ment of a scene that would have been quite new to us :
the King and royal family had just left this port, where
they had been met by the Royal Yacht Club of England,
with their beautiful vessels."
Five pages more of brief notes of conversations, din
ners, etc., entered at irregular intervals, close this second
and last fragment of a diary. He whose industry never
390 LIFE OF EDWARD LIVINGSTON.
flagged in the pursuit of knowledge, nor in the service
of others, whether his clients, his country, or humanity,
could not persevere in the task, which many find so
easy to themselves and make so interesting to others, of
recording merely personal incidents and observations.
Livingston enjoyed the general novelty of what he now
saw, with all the fresh interest of a young traveller. Paris
and the Parisians, the theatres and gardens, the progress
of science and art, the government, the army, the people,
persons, society, all pass in review in his letters to friends
at home. No ardent, youthful American democrat could
have found more complete comfort in a comparison of
the institutions of France with those of the United States
than he did.
There would have been some excuse for him, if, at his
time of life, with the growing fame he enjoyed, the novel
scenes which surrounded and interested him, and the flat
tering notice he received from some of the most eminent
men and most agreeable societies of Europe, he had
satisfied his conscience by a languid attention to the
business of his mission. But he entered upon that busi
ness and persevered in its discharge, at the sacrifice of his
comfort and the risk of his popularity in France, with all
the spirit and assiduity of a young diplomatist, whose for
tune might depend upon his specific success. I am writ
ing after the perusal of the original draughts of upwards
of ninety despatches which he addressed to the Secretary
of State at Washington, detailing, from mail to mail, his
exertions, his conversations with the King, the Ministers,
and members of the Chamber of Deputies, his .fears, hopes,
and impressions. He had been sent to effect two objects:
the payment of the large sum secured by treaty, of which
a part was then overdue from the French government
to his own, and, that accomplished, the negotiation of a
MINISTER TO FRANCE.
new treaty readjusting the commercial relations of the
two countries.
The claim of the United States for indemnity on ac
count of French spoliations, under the Berlin and Milan
decrees, notwithstanding its pretty clear original merits,
had hecome, before its settlement by the treaty of July
4, 1831, negotiated at Paris by Mr. Rives, a rather
stale demand. Louis Philippe, acquiescing in its justice,
had signed that treaty, fixing the indebtedness of his gov
ernment to that of the United States at the sum of twen
ty-five million francs, payable, with interest, in six yearly
instalments. This was all the King could do. The
action of the Chamber of Deputies was required, in order
to appropriate the money. Whether such action could
be secured at all, and, if so, when would be the most
propitious occasion for broaching the subject to the Cham
ber, were matters of uncertainty and royal anxiety. His
Majesty s ministers did not venture to have inserted in
the annual budget the amount of the first instalment,
when it was about to fall due, notwithstanding that the
United States had proceeded, in fulfilment of a provision
in the treaty, immediately to modify their tariff by a
reduction of duties upon French wines, a beneficial
change which that nation had ever since enjoyed. And
so no provision was made for the payment which had
been solemnly stipulated for in the treaty, and which
became due on the d of February, 1833.
The Secretary of the Treasury, Mr. McLane, to whose
discretion Congress had by law confided the mode of
transacting the business of receiving the money, assum
ing that the payment would be made, drew, according
to a previous notice, a bill of exchange for the amount
of the first instalment, dated the 7 tn f February, ad
dressed to the French Minister of Finance, and sold the
LIFE OF EDWARD LIVINGSTON.
draft, in accordance with the forms of mercantile busi
ness, to the Bank of the United States. The bank trans
ferred it to a European holder, who caused it to be pre
sented to the Minister to whom it was directed. The
latter declined the payment, stating, as a reason, that no
appropriation for the purpose had been made; and the
paper was returned, duly protested, to Mr. McLane.
This was the immediate occasion for the appointment
of Livingston to the French mission, which had been
vacant since the return, in 1831, of Mr. Rives, the
intermediate appointment of Mr. Harris as Charge
d Affaires having been intended only as a temporary
measure.
After a most flattering reception by the King and
royal family, Mr. Livingston proceeded at once to busi
ness, and vigorously urged an early and special convoca
tion of the Chambers, in order that a law for the execu
tion of the treaty might be presented. The King would
gladly have complied, but a reluctance to meeting the
question before the deputies, and perhaps even before a
portion of the cabinet, suggested to his mind paramount
reasons for delay till the regular session, and, even then,
for studying to find a favorable opportunity to broach an
unpleasant subject. But strong and constant verbal as
surances were given to Mr. Livingston that the King and
Cabinet had the subject much at heart, and that the neces
sary measure would be presented at the coming regular
session, and would doubtless be successful.
The King was right in apprehending a formidable re
sistance in the Chamber of Deputies. All the elements
of opposition to the government readily combined to
represent the treaty as one which ought not to have been
made, and one in which the American government had
gained an undue advantage, such as the Chamber was not
MINISTER TO FRANCE. 393
bound to carry into effect. All arguments based upon tbe
binding force of the contract seemed to be of no avail,
and tbe expediency of executing it was wbat even tbe
friends of tbe measure chiefly relied upon in tbe discus
sions to which it gave rise. Livingston watched keenly
all that was said by the French journals, on the subject,
actively canvassed the opinions of members of the Cham
ber, and, in conversation, furnished various arguments
to the friends of the measure to prove its expediency,
while, in his official intercourse with the government, he
was careful to insist only on the absolute and solemn
obligation of the treaty.
The pretext that Mr. Rives had gained an advantage in
the negotiation, as to the amount due to tbe citizens of the
United States, was manifestly disingenuous ; because the
French government, ever since the occurrence of the
spoliations, had been in possession of every document
necessary to show full particulars of all the trespasses
complained of by the United States. These documents
were the original ship s papers of the vessels captured,
and the proces verbaux and records of legal proceedings
which indicated exactly the gross and net proceeds of the
several cargoes disposed of under the two decrees. In
deed, the government of the United States was com
pletely dependent upon that of France for the precise in
formation revealable by these documents, in order to be
able to make an equitable division of the sum to be re
ceived among its various claimants ; for which reason the
production of tbe documents was, by a distinct article of
the treaty, made as binding upon France as was the pay
ment of the money. For French statesmen to say that
the Americans had secured an undue advantage in the set
tlement of the amount to be paid, was, therefore, as un
reasonable as for a person, playing at cards, with a full
50
394 LIFE OF EDWARD LIVINGSTON.
knowledge of both his adversary s hand and his own, to
complain that he was outwitted. Yet there was in the
Chamber of Deputies a large body which, though com
posed of several parties incapable of coalescing in any
thing but a factious opposition to a feeble government,
readily united in insisting loudly that the King had weakly
acceded to an exorbitant demand, and that the representa
tives of the nation ought not to ratify an agreement thus
made. The members who took this ground succeeded in
placing their country for a time in the false attitude of a
reluctant and unscrupulous debtor, looking out for causes
of affront which might excuse the refusal or neglect to
pay a debt distinctly liquidated after more than twenty
years of deliberation and delay.
General Jackson, throughout the affair, evinced much
impatience and irritation at the course pursued by the
French government. An indiscreet minister, possessing
the influence with the President which Livingston enjoyed,
would, I think, inevitably have got the two nations em
broiled. He succeeded in vindicating signally the rights
and dignity of his country, while circumspectly guarding
the way to the peaceful solution which followed.
Up to the time of the refusal by the French govern
ment to pay the draft of Mr. McLane for the first instal
ment, the Ministry had not ventured to ask the Chamber
of Deputies to make the necessary appropriation, though
that body had been for several months in session. Such
an application was made a few weeks after the draft had
been dishonored ; but the Chamber then only found time
to read the bill and refer it to a committee. At a
later session in the same year another bill for the same
object was introduced with a similar result. Not till
April, 1834*, after Livingston had been for six months
in Paris, constantly pressing the subject upon the notice
MINISTER TO FRANCE. 395
of the French government, was the definitive action of the
Chamber upon the measure obtained ; and then its deci
sion, by a majority of eight, was a refusal to make the
appropriation.
The King immediately despatched a corvette with in
structions to his Minister at Washington to make assur
ances to our government that the new Chamber of Depu
ties should be called together as soon after the election of
its members as the charter would permit ; that the projet
de loi for the fulfilment of the treaty should be laid before
them ; that all the constitutional powers of the King and
the Cabinet should be exerted to carry it ; and that the re
sult should be made known early enough to enable the
President to communicate it to Congress in the annual
message.
Nevertheless, His Majesty did not find it convenient to
bring the subject before the new Chamber at its summer
session, nor previously to the assembling of Congress, a
delay which gave rise to a more palpable cause of affront
to the dignity of the French nation than had existed in
the supposed indecorum of drawing a bill of exchange for
money which was overdue.* The President, in his an
nual message of December, 1834*, recited the whole his
tory of the affair in very concise and plain terms, and
proceeded bluntly to recommend that the United States
should take redress into their own hands, and that the
Executive might be authorized to make reprisals upon
French property, in case no provision should be made for
payment of the debt at the then approaching session of
the Chamber of Deputies.
* The drawing of the bill of ex- tions between nations should be con-
change by our Secretary of the ducted with other ceremonies than
Treasury e was an unusual and in- those which are proper among in
decorous proceeding. There are dividuals and traders,
good reasons why financial transac-
396 LIFE OT EDWARD LIVINGSTON.
News of the contents of the message reached France
on the 8th of January, and produced there intense and
general excitement, which was heightened by an indiscreet
publication on the part of our government about the
same time of a portion of Mr. Livingston s confidential
despatches, detailing some conversations with and friendly
suggestions made by the King. The pride of the nation
was now aroused and protested loudly against making any
payment under what it chose to regard as a national men
ace on the part of the United States. The King and his
ministers were sorely perplexed. On the 13th of the
month, Mr. Livingston received from the Comte de
Rigny, Minister of Foreign Affairs, a communication
which, after commenting at length and in an acrid
tone upon the President s message to Congress, in
formed him that His Majesty s government was prepar
ing to present a bill for giving sanction to the treaty when
the strange message of December 1st came and obliged
it again to deliberate on what course it should pursue ;
that, though deeply wounded by imputations to which the
Comte would not give a name, the government did not
wish to retreat absolutely from a determination already
taken, in a spirit of good faith and justice ; that it would
still, notwithstanding the difficulties caused by the provo
cation which President Jackson had given and the irrita
tion it had produced upon the public mind, ask the Cham
ber of Deputies for the appropriation ; but that, at the
same time, His Majesty had considered it due to his own
dignity no longer to leave his Minister at Washington,
exposed to hear language so offensive to France ; that M.
Serrurier would therefore be ordered home ; that the
whole of this communication was made in order that Mr.
Livingston might take those measures which might seem
to be its natural consequences; and that the passports
MINISTER TO FRANCE. 397
which Mr. Livingston might desire were, therefore, at
his disposition.
On receiving this note, Mr. Livingston s first impres
sion, according with his strong personal inclination, was
that he ought to demand his passports and leave France ;
hut, after reflection, he determined to await instructions
from the President, and, in the mean time, keep aloof
from the King and his ministers. He immediately wrote
to the Comte de Rigny, that, if the note of the latter was
intended as an intimation of the course which, in the
opinion of His Majesty s government, he ought to pursue
as the natural result of M. Serrurier s recall, he could
take no directions or follow no suggestions hut those of
his own government which had sent him there to repre
sent it ; hut if it was intended as a direction that he should
quit the French territory, he would comply with it at
once, leaving the responsibility where it ought to belong.
At the same time, he promised a full answer to the
" grave matter " in the body of the minister s note. In
taking this course, Livingston submitted to a severe sac
rifice of personal feeling, the sense of which he strongly
expressed in his despatches and private letters.
The answer which he promised to the body of the
Comte de Rigny s note was immediately prepared, and
delivered before the end of the month, while he remained
without any instructions, and uncertain what the views of
the President would be. This paper, produced under
circumstances of such difficulty, is a masterpiece of rea
soning, of eloquence, and of temper. Referring to the
complaints in the Comte de Rigny s note of the terms
used by the President in the message, which he informs
His Majesty s ministers was not addressed directly to
them, he proceeds to make the following point against the
fastidious Frenchman :
398 LIF E OF EDWARD LIVINGSTON.
" I shall endeavor, by a plain exposition of facts, to
repel those charges ; I shall examine them with the free
dom the occasion requires, hut, suppressing- the feelings
which some parts of your Excellency s letter naturally
excite, will, as far as possible, avoid all those topics for
recrimination which press upon my mind. The observa
tion I am about to make will not be deemed a departure
from this rule, because it is intended to convey informa
tion which seems to have been wanted by His Majesty s
minister when, on a late occasion, he presented a law to
the Chamber of Deputies. It is proper, therefore, to
state, that, although the military title of General was glori
ously acquired by the present head of the American gov
ernment, he is not, in official language, designated as
General Jackson, but as the President of the United
States, and that his communication was made in that
character."
The body of this letter is a detailed and spirited vindi
cation of the President and of his message, against the
several criticisms in the French minister s note, yet its
final tone is an ingenious appeal for the preservation of
peace. The following are its closing paragraphs :
"I have no mission, Sir, to offer any modification of
the President s communication to Congress ; and I beg
that what I have said may be considered with the reserve
that I do not acknowledge any right to demand, or any
obligation to give, explanations of a document of that
nature. But the relations which previously existed be
tween the two countries, a desire that no unnecessary
misunderstanding should interrupt them, and the tenor
of your Excellency s letter, (evidently written under
excited feeling,) all convinced me that it was not incom
patible with self-respect and the dignity of my country
to enter into the detail I have done. The same reasons
MINISTER TO FRANCE. 399
induce me to add, that the idea, erroneously entertained,
that an injurious menace is contained in the message,
has prevented your Excellency from giving a proper
attention to its language. A cooler examination will
show, that, although the President was ohliged, as I have
demonstrated, to state to Congress the engagements
which had been made, and that in his opinion they had
not been complied with, yet, in a communication not
addressed to His Majesty s government, not a disrespect
ful term is employed, nor a phrase that his own sense of
propriety, as well as the regard which one nation owes
to another, would induce him to disavow. On the con
trary, expressions of sincere regret that circumstances
obliged him to complain of acts that disturbed the har
mony he wished to preserve with a nation and govern
ment to the high character of which he did ample jus
tice.
" An honorable susceptibility to everything that may,
in the remotest degree, affect the honor of the country,
is a national sentiment of France ; but you will allow,
Sir. that it is carried too far when it becomes impatient
of just complaint, when it will allow none of its acts to
be arraigned, and considers as an offence a simple and
correct examination of injuries received, and as an insult
a deliberation on the means of redress. If it is forbid
den, under the penalty of giving just cause of offence,
for the different branches of a foreign government to
consult together on the nature of wrongs it has received,
and review the several remedies which the law of nations
presents and circumstances justify, then no such consul
tation can take place in a government like that of the
United States, where all the proceedings are public, with
out at once incurring the risk of war, which it would be
the very object of that consultation to avoid."
400 LIFE OF EDWARD LIVINGSTON.
Livingston now felt a keen anxiety to hear an approval
of his conduct by the President and people at home, for
which he was obliged to wait until late in March. Under
date of the 8th of that month, Mr. Van Buren wrote to
him :
" Mr. Forsyth met me this morning at the President s
with your last letter to de Rigny, and we went through it
very deliberately. I could not express myself too strongly
for the opinion I really entertain of its merits. Remem
ber what I say to you, that hereafter, when the correspond
ence is published, it will be selected from the mass as
giving the clearest, the strongest, and the best-tempered
views of the matters in controversy. The General, as
well as Forsyth, was delighted with it."
The President officially informed Mr. Livingston, not
only that his course was warmly approved, as wise and
patriotic, but that, if he had chosen to follow his incli
nation and abandon the mission, and had quitted France
with the whole legation, that course would not have
surprised or displeased the President. As it was, he
was directed, if the appropriation should be rejected, to
leave France in a United States ship of war, with all
the legation ; but, if the appropriation should be made,
to retire to England or Belgium, leaving Mr. Barton
as Charge d" Affaires, and to await further instructions.
The Chamber of Deputies soon determined to appro
priate the money, but, at the same time, to vindicate
what it chose to consider the offended dignity of the
nation. The bill was therefore passed on the 18th of
April, with a proviso that the payment should not be
made until the French government should have received
satisfactory explanations of the terms used by the Presi
dent in his annual message.
For such a posture of affairs Mr. Livingston s in-
MINISTER TO FRANCE.
structions did not provide, and he was obliged again to
rely upon his own judgment in determining upon an
important step, which was, to demand his passports and
come home, leaving Mr. Barton at Paris as Charge a"
Affaires. He signalized his departure by a communi
cation addressed to the Due de Broglie, the Minister
of State for Foreign Affairs, in which office he was
the successor, as he had been the predecessor, of the
Comte de Rigny. This paper, expressly conceived
with a view to keeping open a door of peace between
the two countries, contains the following piece of thor
ough argumentation and plain speaking :
" The President, as the chief executive power, must
have a free and entirely unfettered communication with
the coordinate powers of the government. As the or
gan of intercourse with other nations, he is the only
source from which a knowledge of our relations with them
can be conveyed to the legislative branches. It results
from this, that the utmost freedom from all restraint, in
the details into which he is obliged to enter of interna
tional concerns and of the measures in relation to them,
is essential to the proper performance of this important
part of his functions. He must exercise them without
having continually before him the fear of offending the
susceptibility of the powers whose conduct he is obliged
to notice. In the performance of this duty, he is subject
to public opinion and his own sense of propriety for an
indiscreet, to his constituents for a dangerous, and to his
constitutional judges for an illegal, exercise of the power;
but to no other censure, foreign or domestic. Were any
foreign powers permitted to scan the communications of
the Executive, their complaints, whether real or affected,
would involve the country in continual controversies ;
for, the right being acknowledged, it would be a duty
51
402 LIFE OF EDWARD LIVINGSTON.
to exercise it, by demanding a disavowal of every phrase
they might deem offensive, and an explanation of every
word to which an improper interpretation could be given.
The principle, therefore, has been adopted, that no foreign
power has a right to ask for explanations of anything
that the President, in the exercise of his functions, thinks
proper to communicate to Congress, or of any course he
may advise them to pursue. This rule is not applicable
to the government of the United States alone, but, in
common with it, to all those in which the constitutional
powers are distributed into different branches. No such
nation, desirous of avoiding foreign influence, or foreign
interference in its councils, no such nation, possessing
a due sense of its dignity and independence, can long
submit to the consequences of this interference. When
these are felt, as they soon will be, all must unite in
repelling it, and acknowledge that the United States are
contending in a cause common to them all, and more
important to the liberal governments of Europe than
even to themselves ; for it is too obvious to escape the
slightest attention, that the monarchies of Europe by
which they are surrounded will have all the advantage
of this supervision of the domestic councils of their
neighbors, without being subject to it themselves. It is
true, that, in the representative governments of Europe,
executive communications to legislative bodies have not
the extension that is given to them in the United States,
and that they are, therefore, less liable to attack on that
quarter. But they must not imagine themselves safe.
In the opening address, guarded as it commonly is, every
proposition made by the Ministry, every resolution of
either Chamber, will offer occasions for the jealous in
terference of national punctilio ; for all occupy the same
grounds. No intercommunication of the different branches
MINISTER TO FRANCE. 403
of government will be safe ; and even the courts of jus
tice will afford no sanctuary for the freedom of decision
and of debate ; and the susceptibility of foreign powers
must be consulted in all the departments of government.
Occasions for intervention in the affairs of other coun
tries are but too numerous at present, without opening
another door to encroachments ; and it is no answer to
the argument to say that no complaints will be made but
for reasonable cause, and that of this the nation com
plained of being the judge, no evil can ensue. But this
argument concedes the right of examining the commu
nications in question, which is denied : allow it, and you
will have frivolous as well as grave complaints to answer,
and must not only heal the wounds of a just national
pride, but apply a remedy to those of a morbid suscepti
bility. To show that my fear of the progressive nature
of these encroachments is not imaginary, I pray leave
to call your Excellency s attention to the enclosed report
from the Secretary of State to the President. It is
offered for illustration, not for complaint. I am in
structed to make none. Because the government of
France has taken exceptions to the President s opening
message, the Charge d Affaires of France thinks it his
duty to protest against a special communication, and to
point out the particular passages in a correspondence of
an American minister with his own government, to the
publication of which he objects. If the principle I con
test is just, the Charge d Affaires is right; he has done
his duty as a vigilant supervisor of the President s cor
respondence. If the principle is admitted, every diplo
matic agent at Washington will do the same, and we
shall have twenty censors of the correspondence of the
government and of the public press. If the principle
is correct, every communication which the President
404< LIFE OF EDWARD LIVINGSTON.
makes, in relation to our foreign affairs, either to the
Congress or to the public, ought in prudence to be pre
viously submitted to these ministers, in order to avoid
disputes and troublesome and humiliating explanations.
If the principle be submitted to, neither dignity nor in
dependence is left to the nation. To submit even to a
discreet exercise of such a privilege would be trouble
some and degrading, and the inevitable abuse of it could
not be borne. It must, therefore, be resisted at the
threshold, and its entrance forbidden into the sanctuary
of domestic consultations. But, whatever may be the
principle of other governments, those of the United
States are fixed : the right will never be acknowledged,
and any attempt to enforce it will be repelled by the un
divided energy of the nation."
In these scenes and labors, Livingston did not forget
his plan for the reformation of penal law, which he had
designed, not only for Louisiana, but for the world. He
distributed the work wherever he thought it could be
useful, and sent copies to strangers among the rising
men whose influence he thought might aid in securing
its examination by legislators and publicists. The ac
knowledgments he received were of a character to satisfy
whatever desire for applause was mingled with the phi
lanthropy which had inspired his patient labors in framing
and explaining his system. M. Villemain wrote to him,
thanking him for his " precious gift," and saying, " I
study it with the profound interest which such a work,
without example from the hand of any one man, in
spires." He added, " It is impossible not to be struck
with an order so luminous, so simple, and with such deep
philosophy in a matter so long given up to barbarism
and subtlety. Very certainly, such a reform in penal
jurisprudence reflects more credit upon our modern times
MINISTER TO FRANCE. 405
than the greatest discoveries in the arts, in literature, and
in science ; in fact, it is the perfecting of the first of
sciences, social science. The special report of the in
troduction to the Code of Crimes and Punishments has
not less interested me, from the grandeur and simplicity
of its aims ; and even the phraseology of the enactments
you propose presents a conciseness, a clearness, and, if
it may be so expressed, a probity of diction, (probiti de
langage,) which cannot be too much admired." Victor
Hugo, then a young man, but already renowned for those
literary labors, aiming towards the social benefit of the
more suffering part of mankind, in which he is even at
this moment, with a large increase of fame, definitely
persevering, wrote to Livingston the following letter:
" MONSIEUR : Vous m envoyez un beau livre, un
livre utile, un livre modele. Je vous remercie. Des
que mes mauvais yeux malades me le permettront, je
m empresserai de lire les passages que vous me faites
1 honneur de m indiquer dans 1 ouvrage entier. Permettez
moi de vous dire en attendant que depuis longtemps je
connais vos travaux. Vous etes du nombre des hommes
qui ont le plus et le mieux merite de I humanite dans
ce siecle. Vous etes plus heureux que nous dans votre
pays. Vous defrichez un sol vierge ; vous pouvez realiser
les idees a progres en moins d annees que nous n en met-
tons ici a les discuter; vous assistez vivans a la moisson
du grain que vous avez seme ; nous, nous avons tout au
plus 1 espoir que d autres le recolteront sur notre tombe.
" C est un devoir pour les hommes avances de tous
les pays de se tendre la main. La grande pensee qui
les occupe, I amelioration du sort general de 1 humanite,
leur est comme une commune patrie, placee au dessus
de toutes les delimitations de langues, de climats, et de
406 LIFE OF EDWARD LIVINGSTON.
frontieres. Permettez moi done, Monsieur, de vous re-
garder comme un compatriote, et de vous prier d agreer
avec tous mes remerciemens 1 assurance de mes sentimens
de cordialite et de haute consideration.
" VICTOR HUGO.
"27 Mars, 1834."
Neither this height of reputation which his code had
brought him, nor the constant and anxious labors of his
mission, nor any lassitude of advanced age, caused Liv
ingston to lose a single opportunity of extending the
public knowledge of his system. Under his pen, the
subject was never trite, the reiteration of his views
never wearisome. He could clothe the old thoughts
in a new dress as often as occasion demanded, and
could always invest with a fresh interest the same topics
which, years before, he had seemed to exhaust. His
ardor and his eloquence came from an unfailing source.
Never had he enforced his general views with more zeal
or greater spirit than in a long letter responsive to a com
munication he received, in February, 1835, from the
Howard Society of New Jersey. The following pas
sages are parts of this letter :
" Every citizen ought to impress on his representa
tive the absolute necessity of the reform without which
the best penal laws are ineffectual. Let him be told
that it is his particular duty to correct this abuse ; that
he cannot shift it off on the collective body to which he
belongs ; that he and all who, like him, are silent on this
subject, are the moral murderers of hundreds who, from
the impure contact which his negligence continues to
force upon them, are cut off from society, or live only
to prey upon it; bid him act, and act promptly; that, if
his habits of life do not enable him to prepare the neces-
MINISTER TO FRANCE. 407
sary laws, it is his duty to urge those who are equal to
the task to perform it. Let him use one half the exer
tion that he would for chartering a hank or building a
bridge, and the work will be done, and it will be worth
more than all the banks that were ever chartered, and all
the canals that were ever dug. I have for years urged,
in writing and in conversation, this indispensable reform,
which lies at the bottom of all sound penal legislation.
Every day I am more convinced of its necessity. I seize
the opportunity which your letter affords of reiterating
my efforts. Those of your Society will, I trust, prove
more effectual than mine have been, and enable New
Jersey to set an example to her neighboring States which
they cannot fail to follow.
" I cannot conclude without expressing an earnest hope
that your Society may see the necessity of employing its
collective influence and that which the high character of
all and the station of many of its members individually
give them, to endow your State with that which no State
has yet had the happiness to possess, a complete system
of penal law, resting on the great preventive basis of
general education, religious, moral, and literary, and of
which all the parts shall be adapted to each other.
" No country, I repeat, has ever had such a system;
and none will have it as long as the patchwork plan, of
applying remedies only when evils become intolerable,
shall be pursued.
" New Jersey has an opportunity of rising to a proud
preeminence, in jurisprudential legislation, above her two
powerful neighbors, by constructing the whole of the
new machine, and putting it at once in motion, while they
are trying separately the effects of some of its detached
springs and wheels. These partial experiments become
408 LIFE OF EDWARD LIVINGSTON.
less efficient, and sometimes totally fail, because the in
stitutions on which they are made are unsupported, and
thus bring discredit on the whole system. Thus the pen
itentiary plan loses one half its efficiency and many of its
advocates, because it is counteracted by indiscriminate con
finement before trial, and is not supported by proper laws
to regulate pauperism and vagrancy. If one State could
be prevailed on to give the plan a fair trial, by a connected
series of well-adapted institutions, my life for it, the ef
fects would exceed the most sanguine expectations ; and, if
it failed, how easy to return to the present system, if sys
tem it may be called, which consists only of detached parts.
" Although the education which I received in New
Jersey was sadly imperfect, interrupted by the military
operations of the Revolution, and unaided by the numer
ous professorships, the libraries and apparatus, which now
offer themselves to the more favored students of modern
times, I yet feel an attachment to the State in which this
slight foundation was laid, and would be most happy to
add, in any way, to its honor and the prosperity of its in
habitants. Good laws, faithfully executed, will secure
both* more effectually than great cities or extensive ter
ritory. The first are within your reach ; the other fortu
nately you do not possess, for I think they would impede
rather than aid your progress to the high eminence the
first will enable you to attain."
The first few months of Livingston s residence in
France were the last months of Lafayette s life. Dur
ing this period, the efforts of the Minister to secure the
fulfilment of the treaty were warmly seconded by the
illustrious Franco- American, both in the Chamber of
Deputies, of which he and his son were members, and
out of it. The social intercourse of the two ancient
MINISTER TO FRANCE. 4,99
friends was now constant and mutually delightful. The
following letter to Livingston was, certainly, one of the last
ever dictated by Lafayette. The body of it is in the
handwriting of an amanuensis ; but the signature, feebly
executed, is his own. Three days after its date, the at
tack which it mentions took a more acute form, and, on
the 19th of the same month, he expired.
"Paris, May 6, 1834.
" Since I had the pleasure to see you, my dear friend, I
have had an attack of gouty fever, which kept me in my
bed. I hope it is or will be soon over. I have received a
letter from the Abolition Society of Glasgow, a respecta
ble association it appears, the Lord Provost and principal
men being at the head of it. They have made me an
honorary member, and mean to do so for other members
of the House ; but they so strenuously complain of the
state of society in that respect in a part of the United
States, and request my answering a few questions, which
perhaps will not please them so much as if I was to go
along with them in the reproaches. You know I would
this moment have my right arm cut off to rid the United
States of that lamentable evil. Yet I do not think that
foreign, and particularly British, lectures will much ad
vance the general disposition in that respect. I wish
confidentially to communicate my answer to you.
" I see you cannot get the papers from the Department
of Foreign Affairs. This whole business is strange.
" There was a sad report spread yesterday in the juste
milieu circles : they were saying that a telegraphic de
spatch had arrived announcing, that, in the rejoicing of the
French and foreign navies at Toulon, for the St, Philip,
one of the guns of an American frigate had been care
lessly loaded, or left loaded, with a cannon-ball, and that
52
410 LIFE, OF EDWARD LIVINGSTON.
one Frenchman had been killed and three wounded. I
still hope it is not true. When you hear anything of it,
or receive any letter to the contrary, be pleased to let me
know it.
" How are you, and when do you go 1 Send me my
letter back to-morrow morning, for it is near two months
since I received theirs. With my fellow-citizens of the
South you know I have been more plain and earnest on
the subject than any man living; but I do not like to treat
the matter with foreigners, particularly with those whose
ancestors have entailed the evil upon us.
" Your affectionate friend,
" LAFAYETTE."
In the autumn of 1834, Mr. Livingston, accompanied
by his wife and Mrs. Barton, made a journey through
Switzerland and Germany. He enjoyed it greatly, though
the primary object of the trip was to shake off an inter
mittent fever which he had contracted, and from which it
had the effect to restore him.
At Geneva, he was entertained by M. de Sellon, an ac
tive philanthropist, who showed him a monument in the
form of a temple, which he had, the year before, erected
and consecrated " to the inviolability of the life of man."
On the facade of this monument were twelve inscriptions,
engraved in the marble, to the memory of as many great
names, including those of Fenelon, Beccaria, and Wilber-
force. One of these inscriptions was as follows :
A
LIVINGSTON.
IL DEMANDA
L ABOLITION DE LA
PEINE DE MORT A
L AMERIQUE.
MINISTER TO FRANCE.
On the same journey, when at Heidelberg, he sent his
card to Professor Mittermaier, the voluminous and en
lightened advocate of jurisprudential reforms, who has
lately been styled a German Brougham, with whom, dur
ing the preparation of the penal code, he had had some
correspondence, but whom he had never seen. The Pro
fessor immediately called at his hotel, and, on being shown
to his room, rushed into his arms, hugged and kissed him,
to the astonishment as well as amusement of Mrs. Liv
ingston and her daughter, not to speak of the embarrass
ment which such a form of salutation must have caused
to Livingston himself.
The following passage shows how a statesman and re
forming jurist, though past his seventieth year, may make
the transition " from grave to gay," and enter for a time
into the very spirit of the younger and less thoughtful
crowd. It is taken from a letter written by Livingston
to Dallas in December, 1834.
" Tell Mrs. Dallas that her townswoman, Mrs. W., is
making the greatest sensation in all the fashionable cir
cles. On her first arrival I had the pleasure of intro
ducing her at Lady Granville s soiree, which happened
to be a very crowded one. It is impossible to describe
the effect produced by her entrance. Who is she 1
Where does she come from \ How beautiful ! How
graceful ! How modest ! How well dressed ! An an
gel ! A Hebe ! was exclaimed by an hundred voices ;
and this, although," etc., etc.
Men who possess extreme gentleness of temper do not
lack opportunities for its exercise ; and if Livingston was
never known to be angry, it was not for want of what
most persons would esteem abundant provocation. At
Paris he was unfortunate in the choice of a valet de cham~
bre, a mulatto who had been highly commended to him.
LIFE OF EDWARD LIVINGSTON.
This man was ingenious in dereliction, and at length had
to be discharged. The following was his last perform
ance while in Mr. Livingston s service. The latter sent
his watch by him to a maker s, to be repaired. On his
return he reported that the work would be done by a cer
tain time. The period passed; he was sent to bring the
watch home. He came back with a message that the
repairs were not yet finished. This was repeated several
times, and at last Mr. Livingston, in his mildest but firm
est tones, directed him to ask the maker to return his
watch, whether mended or not. At this point the man
fell upon his knees, and confessed, that, having urgent need
of a small sum of money, he had left the watch, not at
the maker s, but at the mont-de-piete. Mr. Livingston
now seemed to feel that it was incumbent upon him to
exhibit a good deal of wrath, and he rebuked the fel
low with some severity ; but he had no inclination to
prolong the scene, and, hastening to the room where his
family were sitting, his features beaming \vith mirthful-
ness, he told them the story of the unhappy valet, in a
manner evincing that he was impressed by the ludicrous
features of the misdemeanor, rather more than by its
flagrancy.
Mr. Livingston, always a prompt and industrious letter-
writer, while in France, besides a regular correspondence
with many public men at home, including Andrew Jack
son, James Madison, Daniel Webster, Edward Everett,
George M. Dallas, Joel R. Poinsett, Charles J. Ingersoll,
and others, continued to write often to his relations and
friends. To his aged sister, Mrs. Garretson, he did not
forget to send a minute account of the incidents of his
outward voyage, including a singular dream. And he
wrote for her, when she was in the eighty- third year of
her age, a full report of his travels in Switzerland and
MINISTER TO FRANCE. 413
Germany. Of this last letter the following is a pas-
" Your very affectionate and good letter reached me
among the mountains of Switzerland, where I had gone
for the henefit of my health. Thank God, it is now re
stored, and I am enabled without inconvenience to per
form the duties of my place. Believe me, my dear sister,
I feel the force of your reflections ; but I cannot believe
that a strict attention to the duties which our country or
our situation in life require is incompatible with those due
to our Creator. I endeavor, therefore, to reconcile them.
If I could think this were impossible, I would at once re
nounce the former ; for with you I am persuaded that the
last is of paramount importance."
During the first year of General Jackson s administra
tion, Mr. Livingston s brother-in-law, Auguste Davezac,
who in the campaign for the defence of New Orleans had
attained the military rank and title of Major, was de
spatched as Charge d Affaires of the United States at the
Hague. He was a much younger man than Livingston,
for whom his respect was almost worship. He possessed,
perhaps, more talent than judgment, and Livingston, who
entertained the warmest affection for him, watched his di
plomatic career with a parental solicitude. Both before and
after going himself to France, he constantly conveyed to
him, in the most gentle manner, such advice as he thought
he might most stand in need of. The tone of all his let
ters to the Charge d Affaires was like the concluding sen
tence of one of them, in which, while Secretary of State,
he informed him of his confirmation by the Senate and
of a provision for credit with his bankers, " Live pru
dently, happily, et non nostri immemor"
Livingston could feelingly give to one whose welfare he
had at heart the advice to live prudently. We have seen
LIFE OF EDWARD LIVINGSTON.
how long and how severely he had himself expiated the
want of common financial skill. The penalty for this
innate defect he was destined to continue paying, in some
degree, to the end. While he lived in France, though
possessing a good deal of landed property, his command
of ready money, beyond the inadequate salary of his of
fice, was not sufficient to exempt him from anxiety and
the practical study of economy. Shortly after reaching
Paris, he wrote to Davezac that he hoped they would all
meet at Montgomery Place in a year, or eighteen months
at farthest. " In two years," he added, " the necessary
expenses of an establishment here would embarrass me
greatly." In the course of one of the earliest of his
public despatches to the Secretary of State at Washing
ton the following passage occurs :
" I have, since my arrival, been living inconveniently
in an hotel, taking time to get my establishment on a
footing of economy united with the necessary respecta
bility of my station ; and I find that the four articles of
house-rent, coach-hire, servants, and fuel will take about
seven thousand dollars, leaving for all my other expenses,
in this expensive capital, two thousand dollars. I make
this statement, not because I can have any interest in it,
for I am not rich enough to remain here until some rem
edy could be applied to the evil, but for the honor of the
country, and to enable it to avail itself of the services of
others than men of large fortune."
On receiving from the French government the pass
ports which he had demanded, he felt a strong desire to
make some further excursions, particularly in England,
before returning home ; but his sense of duty obliged
him to forego this pleasure, in order to make the break
ing up of the mission a perfectly unequivocal act. On
the eve of his embarkation he wrote to Davezac :
MINISTER TO FRANCE. 415
"Havre, 4th May, 1835.
" I was very happy, my dear Davezac, to find that you
saw the condition annexed to the law providing for the
payment of our indemnity in the light I do, and approved
of my return. The necessity for this movement disap
pointed me, for I wished very much to pass some time
with you and afterwards in England ; but this was impos
sible after the refusal to pay, for such in effect is the an
nexation of a degrading condition. My stay in Europe
would be considered as evidence of a desire to resume
my mission.
" We shall probably now, my dear Davezac, meet no
more, unless you should get tired of diplomacy before I
die, which is not very probable. Whenever you do, come
to Montgomery, and we will lead a happier, although less
splendid life than at Paris or the Hague And you,
how do your affairs at Amsterdam prosper I Let me
know all about you when you write, which I hope you
will do frequently.
" We have been here four or five days, waiting the ar
rival of the frigate from Cherbourg, where she went to
take in water. She is just returned, and we embark to
morrow.
" God bless you, my dear Davezac,
" Yours affectionately,
" EDW. LIVINGSTON."
The frigate in which Mr. Livingston, with his family,
was brought home was the Constitution, commanded by
Commodore Elliott, which arrived at New York on the
23d of June. Intelligence of the state in which he had
left the affair with France had preceded him, and pre
pared the country to express complete and universal satis
faction with his conduct. So general and popular was
416 LIFE OF EDWARD LIVINGSTON.
the feeling, that crowds of people greeted him at the
landing, and followed his carriage to the house of his
brother, in Greenwich Street, in front of which they
remained calling for him until he appeared at the door
and said :
" Fellow-citizens, I feel much happiness at your cord
ial welcome of my return, and beg to assure you that
during my mission I have studied all that was due to the
dignity of my country, its general interest, and its wel
fare."
Cheers greeted this concise speech, and the crowd dis
persed. The next day, Mr. Livingston, in accordance
with a request of the Common Council, held a public
reception in the Governor s room at the city-hall. He
received an invitation to a public dinner to be given in
his honor, from a large meeting of citizens which as
sembled on the day of his arrival. The invitation, which
was signed by Cornelius W. Lawrence, the Mayor, and by
Preserved Fish, Enos T. Throop, Samuel Jones, Thomas
J. Oakley, William Leggett, J. Fenimore Cooper, C.
C. Cambreling, Theodore Sedgwick, Junior, John Mc-
Keon, and many others, contained the following para
graph : -
" Your fellow-citizens are desirous of giving you, upon
your return to this your native State, that cordial wel
come due to one who has done so much to illustrate the
American name ; to show by the warmth of that greeting
that they place a just estimate upon the services of their
public men, and that they understand and appreciate the
embarrassment and harassing anxieties which have met
you at every stage of this question; that they recognize
in your recent acts the firm characteristics which have
marked the whole of your eminent and useful public
life ; and that your unfaltering zeal, your wise aversion
MINISTER TO FRANCE.
to violent measures, and your proud and fervent nation
ality of spirit, command the unqualified respect and ad
miration of your countrymen."
Mr. Livingston accepted this honor, and at the dinner,
which took place at the City Hotel, on the 16th of July,
and at which the Mayor, Mr. Lawrence, presided, was
toasted in the following terms :
"Edward Livingston. As a patriot and statesman he
belongs to America ; as a jurist and philosopher, to the
world. His exposition of the 25th April embodies the
sentiments of his countrymen, and stands as a text-book
for American diplomatists."
Upon rising to respond to this compliment, Living
ston betrayed I will not ask the statesmen of the pres
ent day to credit the fact an unmistakable diffidence,
such as has not often been witnessed in this country,
whose public men, whatever other qualities they may
have lacked, have not usually been wanting in self-pos
session. The following is the report of his opening re
marks, which were received with demonstrations of gen
eral enthusiasm :
" I had arranged some phrases which I thought might
suit the occasion. But they are driven from my mind
by the impulse which the scene around me most naturally
produces. I find them tame, flat, powerless, to express
the feelings by which I am excited, agitated, almost
overpowered.
" Gentlemen, I did not expect this. I returned
without having attained final success in my mission. I
returned with the satisfactory, but humble consciousness
of having done my duty; and I anticipated no other
pleasure on my return than the greetings of personal
friends, and that exquisite sensation which one who loves
his country feels, when, after a long absence, his foot
53
418 LIFE OF EDWARD LIVINGSTON.
presses his native shore. Such of you, Gentlemen, as
have been abroad will understand this. But all of you
must join me in lamenting, that the poverty of our lan
guage has no other word than the vague one of country
to express the relation between it and its citizens. We
have no derivative from the patria of the Romans, and
have not adopted the Faderland of our Saxon ancestors.
Nothing can be more appropriate to express the feeling,
nothing more resembles filial duty and affection, than
the obligation we owe to our native land, or the attach
ment which binds us by voluntary ties to the country
of our adoption. But if we have not the word in our
language, we have the sentiment in our hearts. Prop
erly cultivated, it will teach us, not only to support our
country on occasions like the present, when it can ap
peal to all nations for the uniform moderation and jus
tice of its course, but, with the pious sons of the patri
arch, to veil even the occasional excesses of our common
parent from the eyes of the world, not, like their degen
erate, unnatural brother, to exaggerate and expose them
to derision, to conceal, not to discover, the nakedness
of the land, to glory in its honor, to lament its misfor
tunes, to espouse its cause as our own, and identify our
selves with it in its prosperous or adverse fortune. This
is patriotism, this is true love of country; and as it is
common to all who hear me, I may be permitted to say,
that it guided me in my conduct, cheered me during the
difficulties of my mission, and that I looked to the con
sciousness of its having animated me for my best re
ward.
" I repeat, Gentlemen, that I did not expect the recep
tion I have met with. But I should be guilty of an
absurd affectation if I attempted to conceal the heartfelt
pleasure it has given me. I thank you for myself. I
MINISTER TO FRANCE.
thank you more for my country ; for I have not the vanity
to believe that any merit of mine could excite the enthu
siastic demonstrations that have been made ; and my feel
ings of personal gratification were lost in the higher enjoy
ment of national pride, when, amid the shouts that greeted
my arrival, the first words I could distinguish were
those which reprobated any unworthy concession. Never
within my recollection, in the course of a long political
life, has public sentiment, on any question, been so strong
ly expressed, expressed as it should be, calmly but with
energy, without bluster, without violence, in the language
of high-minded men, who appreciate their own character
and the dignity of their country. In a settled determi
nation to suffer no degrading interference with our legis
lative councils, all party feelings seem forgotten, and the
assurance I gave to the French government on my de
parture, that every attempt of this nature would be re
pelled by the undivided energies of the nation, seems
nobly confirmed."
The prominent names among those who conducted this
public demonstration appear to have belonged mainly
to members of one party, that attached to General
Jackson and his administration. The opposite party
severely criticised the spirit which sought to have such
a statesman, on such an occasion, all to itself. The "New
York American," a journal of the opposition, observed
upon the subject :
" So far as this dinner was intended as a party demon
stration, it was, we understand, quite successful, the
faithful who are in, and those who expect to be in, office
attending in full numbers.
" So far as it was meant to pass, at home, for a com
pliment from his fellow-citizens at large, or to produce
the impression abroad that all parties united in it, this fes-
4*20 LIFE OF EDWARD LIVINGSTON.
tival was, of course, a failure. Therein we think the
party managers sinned alike against good policy and
good taste ; for it is quite certain, such is the general
satisfaction with Mr. Livingston s course as Minister in
France, and especially with his last letter, that all sides
would have cheerfully united in the compliment to him,
an occurrence that, of course, would personally have
been more gratifying, and, for national effect abroad,
greatly more striking. Party considerations, however,
prevailed ; though not, we are persuaded, with the con
currence or approbation of Mr. Livingston."
About the same time, Livingston was received, at a
similar dinner in Philadelphia, with no less warmth of
popular welcome. On the latter occasion he thus defined
the position of the nation with respect to France :
" The case that has drawn forth this noble expression
of national feeling is of novel occurrence. Heretofore
we have contended for rights withheld, for interests in
vaded : we contended manfully, successfully, but never
with perfect unanimity. Now, we are called on to con
sider a question of national dignity, unmingled with any
other consideration; and the country shows by its unex
ampled unanimity that it considers this last as of para
mount importance. Lost rights may be recovered ; the
battles of freedom, though sometimes lost/ are, in the
end, always won. Injuries to interest may be re
paired ; but the reputation of a country once lost can
never be regained.
44 The people of the United States seem to be deeply
sensible of this great truth ; and the cry which I first
heard on my arrival, of No apology ! No concession !
has been repeated by the unanimous voice of the nation
from the seaboard to the mountains, from the mountains
to the great lakes and the valleys of the Mississippi.
MINISTER TO FRANCE.
Not only all the prejudices of party seem lost in this na
tional spirit, but strong 1 personal interests give way to
the patriotic feeling which prompts even those who are
interested in the claims on France to reject, with disdain,
the idea of purchasing their payment by an act of na
tional dishonor. I renew, therefore, my congratulations
to you and to the country on the noble spirit which
pervades it."
In the course of the same speech he gave the follow
ing expression to the inherent, essential republicanism of
his nature :
" The occasion which has brought you together adds
one more to the many preceding refutations of the charge
of ingratitude against republics ; for the people have, on
this occasion, most generously repaid moderate services,
ordinary talents, and humble efforts, by the highest of all
rewards, their approbation and applause.
" No ! republics are not ungrateful ! The charge is
made by the sordid and the vain, who think nothing
valuable but gold, nothing honorable but titles, and that
gaudy ribbons are the proper recompense for merit.
No, Gentlemen, republics are not ungrateful, but they
are judicious in their choice of rewards. They do not
give hereditary honors to virtue and wisdom, which may
descend to folly and vice. They do not wring its earn
ings from the hard hand of labor, that they may be poured
out in pensions on the idle and unworthy. They do not
decorate with stars and spangled garters, with ribbons
and crosses and gewgaws, men who, if they have done
anything that may seem to have deserved these childish
toys, may afterwards prove unworthy of the decoration.
But they give a nobler, a higher recompense for services,
they give their confidence; and the seal of their appro
bation is a prouder distinction than any that dangles
LIFE OF EDWARD LIVINGSTON.
from the button-hole, or is embroidered on the breast
of the titled courtier ; and I feel myself more honored
as well as gratified by the applauding voice of my fellow-
citizens, by the grasp of their friendly hands, some of
them hard with honest labor, by their countenances,
beaming with the fire of patriotism, infinitely more
honored, than I could be by any titular appendage to
my name that a monarch could bestow."
It is perhaps superfluous to add that the whole conduct
of Livingston while abroad received the hearty applause
of the President and of all the members of the admin
istration. Indeed, not the administration only, but all
parties, in Congress and the country, were in this sen
timent unanimous, and unanimous in a determination
to go to war with France, if necessary, but never to
give her the required explanation, a determination
which furnished the subject of one of the most impas
sioned and effective bursts of oratory from John Quincy
Adams, the venerable ex-President, and leader of the
opposition in Congress. The approbation of the Presi
dent was officially communicated to Livingston by the
Secretary of State, in a note, responsive to his letter
resigning office, which not only applauded his whole con
duct while in France, and especially his parting letter
to the Due de Broglie, but referred to the regard and
respect which many years of intimate association in peace
and war had inspired in the President s breast, and de
clared that, although they had differed on some points
of general policy, the minister s singleness of purpose,
perfect integrity, and devotion to his country, had been
always known to the President, who trusted that his
friend s retirement might be but temporary.
CHAPTER XVIII.
CONCLUSION.
Retirement of Livingston to Montgomery Place Pursuits, Associa
tions, and Views Visit at Washington Last Appearance in the Su
preme Court Allusion to Jefferson Mr. Barton s Return from France
Culmination of the Difficulty between the two Governments Letter
of Advice from Livingston to the President, respecting the Message to
Congress on that Subject Mediation in the Affair by Great Britain
Settlement of the Dispute Extract from Livingston s Last Letter to his
Wife Return to Montgomery Place Illness and Death Honors
paid to his Memory The Author s View of Livingston s Character.
LIVINGSTON now retired to Montgomery Place,
with leisure to watch the daily changes in its foli
age, its scenery, and its prospects. For more than thirty
years, in the midst of lahor, excitement, and suffering,
he had sighed for this kind of repose, and the habits ac
quired in so long a period of activity had not disqualified
him for enjoying it, when finally attained. Some of his
letters, written during the following months, picture
warmly the delights of " a gorgeous fall foliage, listless
sauntering, and nothing to do." Reading, correspondence,
and long walks, upon which he sometimes carried his fish
ing-rod or fowling-piece, formed his principal occupation.
An experiment which he made in transplanting, upon
the lawn, in the month of August, a large locust-tree,
afforded him a subject of the most lively interest.
In the neighborhood of Montgomery Place were the
country-seats of his brother, John R. Livingston, and
of most of his surviving relatives. It would be difficult
to paint in too strong colors the pride and affection with
LIFE OF EDWARD LIVINGSTON.
which he was regarded by this circle. He had been the
youngest and the favorite, as we have seen, of the old
family household; those who still lived had, with true
solicitude, watched his career during the long struggles
through which he had passed, and now his achievements
and fame were in some sense their reward as well as
his own. His intellect had never been brighter, his
manners never more genial, his affections never warmer
than now. By all his intimate acquaintances he was
looked upon as one of those rare men who, without any
definite blemish upon their virtue or their temper, are
nearly for even human partiality has never pronounced
any man to be entirely perfect: The venerable Mrs.
Garretson, who had been his playful correspondent sixty
years before, who had followed his whole growth and
career with a sister s, almost a mother s tenderness, and
who certainly cherished a sound faith in the doctrines of
the Methodist church, of which she had long been a
member, used at this period to repeat an observation
which seemed almost to imply that she found it difficult
to understand how a natural heart such as his could
need regeneration.
The President, on receiving his resignation, had offi
cially said that he trusted his retirement would be but
temporary ; but I do not find that he himself entertained
any definite expectation of, or desire for, further public
employment, though the following paragraph from a
letter, dated the 1st of November, to one of the closest
of his political friends shows that there were two offices
to either of which he would not have been averse, if it
had been fairly open to him :
" I answer you, my dear Dallas, as you desire, sin
cerely and very confidentially. I am not very desirous
of place, but I cannot, while I enjoy my present state of
CONCLUSION.
health, be entirely idle. Yet there are but two situations
which have any attractions for me : the one I occupied
at home, and the mission to England abroad, neither of
which is there any chance of my obtaining; so that I
shall most probably remain where I am, watching the
hues of the revolving year, as reasonable an occupa
tion, and probably as profitable a one, as any that politi
cal life would afford."
To his son-in-law, who remained in France as Charge
d Affaires of the United States, he had written in the
month of August :
" I wish you were with us, my dear Barton, in this
delightful retirement, which does not lose its charms for
me by the comparison I make between its natural beauties
and the highly improved grounds of England. I feel
the same interest that I formerly felt in walking through
the rough walks in our woods, and in planning new ones;
but I want you to help me."
In January, 1836, he visited Washington, to attend
the term of the Supreme Court; where he was engaged
to appear professionally in the case of the Municipal Au
thorities of the City of New Orleans, appellants, versus
The United States, respondents. He was senior counsel
for the appellants ; his junior associate was Daniel Web
ster, and the other side was very ably represented by
Benjamin F. Butler, Attorney-General of the United
States. The discussion was opened by Mr. Webster.
Mr. Butler, in the course of his argument, and in sup
port of some of his positions, cited largely from Mr.
Livingston s answer in the Batture case, and in such
terms of respect and approval as elicited from the latter,
in his closing address to the court, this digression :
" The reference to the pamphlet from which the argu
ment has been drawn, the flattering terms in which the
54
LIFE OF EDWARD LIVINGSTON.
Attorney-General has been pleased to speak of it, and
the possibility that in looking at it the court may recur
to other parts than those immediately relating to the
questions before them, oblige me to ask their indulgence
for a single observation, irrelevant, it is true, to the
case, but which I am happy to find an opportunity of
making. That pamphlet was written under circumstances
in which the author thought, and still thinks, he had
suffered grievous wrongs, wrongs which he thought,
and still thinks, justified the warmth of language in which
some parts of his argument are couched, but which his
respect for the public and private character of his oppo
nent, always obliged him to regret that he had been forced
to use. He is happy, however, to say that at a subse
quent period the friendly intercourse with which, prior
to that breach, he had been honored, was renewed ; that
the offended party forgot the injury, and that the other
performed the more difficult task (if the maxim of a
celebrated French author is true) of forgiving the man
upon whom he had inflicted it. The court, I hope, will
excuse this personal digression ; but I could not avoid
using this occasion of making known that I have been
spared the lasting regret of reflecting that Jefferson had
descended to the grave with a feeling of ill-will towards
me." *
Whilst Mr. Livingston was at Washington on this
occasion, Mr. Barton reached the capital on his return
from France. He had been instructed to ask for the
final determination of the French government as to the
payment of the instalments due under the treaty, and, in
case of a refusal to make the payment without further
explanations, to return to the United States. These in
structions he had followed ; and the French Minister of
* 10 Peters s Reports, 691.
CONCLUSION.
Foreign Affairs had communicated to him the deter
mination of His Majesty s government to pay the money
as soon as that of the United States should have ex
pressed its regret at the misunderstanding which had
arisen between the two governments, and should have
made some further assurances, of which the minister, al
lowing himself a very broad latitude in construing the
requirements of the law under which he was acting,
proceeded to dictate the form.* Mr. Barton had there
upon demanded his passports, and, leaving the papers of
the legation in custody of the consul of the United States,
hastened to Washington to report the affair personally
to the President. Mr. Livingston, whom he found there,
accompanied him to the White House. On their way
thither, they were joined by the Vice-President and the
Secretary of State, who during the walk betrayed a
good deal of anxiety as to the matter of the statement
about to be made. This did not escape the notice of
Mr. Barton. Turning to them as they were about to
enter, he inquired of them, in a tone half playful, half
earnest,
" Well, Gentlemen, shall it be oil or water "? "
" Oh, water, by all means ! " exclaimed both, in the
same breath.
* The proviso annexed to the law the United States is ready, on its
which authorized the fulfilment of the part, to declare to us, by addressing
treaty forbade the payment of the its claim to us officially, in writing,
money until " the French govern- that it regrets the misunderstanding
ment should have received satisfac- which has arisen between the two
tory explanations with regard to the countries ; that this misunderstand-
message of the President of the Un- ing is founded on a mistake ; that it
ion, under date of December 2, never entered into its intention to
1834." Momteur of igth April, call in question the good faith of
1835. What the French govern- the French government, nor to take
ment chose to regard as "satisfac- a menacing attitude towards France."
tory explanations " will appear from And he added, " If the government
the following extract from the Due of the United States does not give
de Broglie s note referred to in the this assurance, we shall be obliged
text. " We will pay the money," to think that this misunderstanding
said he, " when the government of is not the result of an error."
428 LIFE OF EDWARD LIVINGSTON.
" That, Gentlemen, will, I think, be the effect of what
I shall have to say."
Mr. Livingston, during the whole time that had passed
since Mr. Barton s arrival, had carefully avoided any
question as to the nature of the communication which
the latter might think it his duty to make. Feeling, cer
tainly, no less solicitude than his companions as to the
possibly momentous result of the interview about to take
place, he yet entirely confided in his friend s discretion,
a delicate forbearance which the young man could not
but feelingly appreciate, and which he acknowledged by
a pressure of the hand at the moment when they were
on the point of entering the room of the excited Presi
dent.
Jackson, immediately after the interview, prepared a
special message to Congress, which he submitted to the
judgment of Livingston. The latter disapproved the
paper, and drew himself a substitute, which he sent to
the President with the following note :
" January u, 1836.
" MY DEAR GENERAL : Professions on my part, in
communicating with you, w r ould be worse than useless :
they would imply a suspicion that there was a want of
confidence which for twenty years has been uninterrupted.
During that time you have known my attachment to
your person, and my desire to promote your public repu
tation, always identified in my mind with the glory of
our country. I, therefore, though no longer one of your
official advisers, take the liberty, at times, of offering my
advice freely on subjects where I think it may be of
use.
" Such a case now occurs. The message about to be
delivered is one of no ordinary importance : it may pro-
CONCLUSION.
duce war or secure peace. Should the French govern
ment be content to receive your last message, they will
not do so until they have seen this. There should not,
therefore, he anything in it unnecessarily irritating.
You have told them home-truths in the first. You
have made a case that will unite every American feeling
on the side of our country. It cannot be made stronger,
and to repeat it would be unnecessary. The draft you
did me the honor to show me would make an admira
ble manifesto or a declaration of war ; but we are not
yet come to that. The world would give it that char
acter ; and, issued before we know the effect of the first
message, it would be considered as precipitate.
" The characteristics of the present communication
ought, in my opinion, to be moderation and firmness.
Our cause is so good, that we need not be violent. Mod
eration in language, firmness in purpose, will unite all
hearts at home, all opinions abroad, in our favor. Warmth
and recrimination will give arguments to false friends
and real enemies, which they may use with effect against
us. On these principles I have framed the hasty draft
which I enclose. You will with your usual discernment
determine whether it suits the present emergency. At
any rate, I know that you will do justice to the motive
that has induced me to offer it.
" Yours,
"Eow. LIVINGSTON."
The reader who examines the message which was
sent to Congress, dated the 15th of January, 1836, will
find that it is not "a declaration of war," nor in any sense
" violent," but that its " moderation in language " is
equalled by its "firmness in purpose." Indeed, its tone
of determination, though quiet, is intense. It produced
430 LIFE OF EDWARD LIVINGSTON.
the best effect possible. England immediately afterwards
offered her friendly services as mediator between the
United States and France. General Jackson promptly
accepted the offer, but with distinct notice and open res
ervation that his government would never recede from the
ground it had taken. This kind of judicial submission,
in which one party decides the cause in his own favor
beforehand, may seem ludicrous, but it really took place
in this important international case ; for France also ac
cepted the proposed arbitrament, notwithstanding the
vital reservation on the part of the United States, and
the mediator seemed prepared to decide as General Jack
son had already done ; but France saved England the
trouble by declaring herself ready to pay the money,
and the disturbed ancient amity of the two nations was
happily and at once restored.
This visit at Washington was Mr. Livingston s last
absence from his family, and the occasion of the last of
his letters to them. Of these, the following is an ex
tract from the latest one, dated February 5, 1 836 :
" How can you say, my dearest wife, as you have done
in several of your letters, that you can do nothing to
secure the happiness of our family, and that all the
merit is mine 1 What have you done for these thirty
years past but to direct me by your wise suggestions,
to restrain me by your prudence from rash undertak
ings, to encourage me in every honorable and useful
pursuit, and to console me under afflictions and disap
pointments that would have overwhelmed me and made
me relinquish every effort, if you had not been at my
side to teach me how to bear them ? What I am I owe
chiefly to you; and I will not permit you to undervalue
the aid you have given me."
Mr. Livingston passed the remainder of the winter in
CONCLUSION. 431
New York, and early in the spring was once more
among his huds at Montgomery Place. He anticipated
a summer of tranquillity and complete happiness. The
correspondence which his hold upon public attention, at
home and abroad, imposed, formed no drawback to his
ease ; for he despatched it as if it were a recreation,
though with methodical exactness. His capacity for en
joyment was in no way impaired, except by a partial
deafness which had been growing upon him gradually
for many years. His relish for out-of-door occupation
was as strong as it had ever been. About the middle
of May, he planned an excursion to Long Island for
trout-fishing, in company with one or two friends.
In the night preceding Saturday, the 21st of the month,
he was taken suddenly and violently ill with bilious colic.
During the next two days he obtained scarcely any
relief from excruciating bodily pain, his vigorous con
stitution and unimpaired strength only adding to the
agony of his sufferings. He bore them with the quiet
fortitude which nature had given him, and which had
been perfected by the lessons of misfortune and grief.
Urbanity and habitual consideration for the interests and
feelings of those about him continued to mark his de
meanor as much as they had done while his health was
perfect. When an old family servant who had injured
his foot entered his room, he gently reproved him for
his imprudence in coming up-stairs, but thanked him for
the feeling which had prompted the exertion.
He was delirious for a few hours, during which time
he spoke of nothing but his rural pursuits, his eyes spark
ling as he dwelt proudly upon his success in transplant
ing the locust in full leaf, and repeated with animation
that it would revolutionize that part of horticultural pro
ceedings. Speech left him after his return to conscious-
LIFE OF EDWARD LIVINGSTON.
ness ; but he still welcomed, with an extended hand or
a benignant smile, those who approached his bed.
On Monday, the 3d of May, 1836, within five days
of the completion of his seventy-second year, he ex
pired, easily, serenely, and cheerfully, surrounded by his
family and many of his friends. His sister, the pious
Mrs. Garretson, then eighty-five years of age, had been
constantly with him during his brief illness.
To those who had known him his death seemed pre
mature ; for no one had come to regard him as an old
man. It was remarked that his black hair resting upon
the pillow of his coffin presented a striking contrast with
the record of his years inscribed upon the lid.
His remains were laid beside those of his mother, in
the vault of the family at Clermont, the place of his birth.
A plain tablet, placed by his wife and daughter in the
Dutch Reformed church at the village of Rhinebeck,
bears a simple inscription, describing him as " a man, for
talents equalled by few, for virtues surpassed by none."
Montgomery Place, possessed by his widow till her
death in I860,* and since then by their daughter, Mrs.
* Mrs. Livingston passed her wid- coach. As we were about to depart
owhood of nearly a quarter of a cen- from one of the stations, my husband
tury in complete retirement. She and myself occupying the back seat,
died, as for many years she had lived, and all the other places, but one,
a member of the Methodist church, being filled, a plain man, holding
No circumstance was wanting to per- by the hand a very pretty young
feet the contrast between the begin- girl, presented himself at the side of
ning and the close of her days. The the vehicle, and carefully scanned
memory of her husband, his charac- the faces of all the passengers. Af
ter, his actions, and his fame, con- ter doing so, he turned to my hus-
tinued paramount in her thoughts band and said, I was looking for
and conversation to the last. The some one to whom I might confide
following was one of her latest rem- the charge of my daughter, who is
iniscences of him, given to a friend, obliged to travel without a protector
with temporary animation at a time for some distance. I think I must
when she was almost too feeble to select you. * You judge rightly,
converse. " On one of our return- my friend, said I, you judge right-
ing journeys to New Orleans," she ly ; he has been the protector of in-
said, "we were travelling through nocence all his life. "
the interior of Pennsylvania by stage-
CONCLUSION. 4,33
Barton, remains much as he left it. His library and
the rooms he particularly occupied have scarcely been
disturbed. His locust-tree still flourishes upon the
lawn. His gun, flint-locked and rusty, and his fishing-
rod stand where he last placed them, in a corner of the
library. In this room, a square apartment, with plain
shelves from floor to ceiling, the writer passed some
thoughtful days in reading the late occupant s lar^e cor
respondence with many of the leading spirits and think
ers of his time.
The honors paid to Livingston s memory, publicly and
privately, immediately after his death, were all that his
reasonable ambition could have craved. " A purer, sweet
er, or superior spirit," said Charles J. Ingersoll, " seldom
has departed. He belonged to a peerage of which there
are very few members."
The young Theodore Sedgwick, the third eminent
man, in direct succession, of the name, wrote, " I
shall never cease to rejoice that I had an opportunity,
though how much too brief! of knowing one who was
an honor no less to his race than to his country."
" I have lost a friend," was the language of another
young and ardent admirer of his character, "whom
pride, esteem, and affection conspired to make dear to
me. Nor could I ever tell whether I loved or admired
him most. His social and endearing qualities were
equal to the splendor of his intellect and the glory of
his life."
The common council of the city of New York, in
publicly noticing his death, declared that he had been
"a leader in every enterprise calculated to improve or
adorn society. Whether in courts or camps, his philo
sophic mind seemed to comprehend within its ample
limit the whole human race."
55
434- LIFE OF EDWARD LIVINGSTON.
At the close of a long oration, devoted to a review of
the life and character of the departed Academician, de
livered before the new Academy of the Institute of
France, M. Mignet, the historian, said, " By the death
of Mr. Livingston, America has lost her most powerful
intellect, the Academy one of its most illustrious mem
bers, and Humanity one of her most zealous benefac-
" &
tors.
Of a like tenor was the general voice, not only of
municipal bodies and political societies in several States,
but of eminent men and of learned and philanthropic
associations in America and in Europe. The Society
of St. Tammany commemorated his death and that of
the illustrious Madison, in the same series of resolutions.
The Masonic General Grand Chapter of the United
States, of which, as the successor of De Witt Clinton,
upon the death of the latter, he had been since 1829, by
three triennial elections, the official head, adopted, as a
memorial forming a page of its records, an elaborate
epitaph, reciting the principal events and actions of his
life. The Guatemalan government ordered the observ
ance of a public mourning for him.
Thus I have sketched the leading events of Living
ston s life, as my researches have presented them to my
own mind. The reflection which has proceeded from
the task has, more than anything else, impressed me
with the conviction, that, in biography as well as in
history, complete accuracy is only to be approached,
* " Par la mort de M. Livingston, un de ses plus zeles bienfaiteurs."
TAmerique a perdu sa plus forte Eloge Historique de M. Livingston,
intelligence, 1* Academic un de ses par M. Mignet, etc. etc. Paris,
plus illustres associ^s, et 1 humanite 1838.
CONCLUSION. 435
not attained. At least, I can only pretend to have fairly
reflected the actual impressions derived by one mind
from a diligent study of abundant materials. I trust
the reader has been furnished with sufficient facts from
which to deduce for himself a satisfactory estimate of
the genius and character of Livingston ; while I follow
a settled custom in tracing some outline of the concep
tion I have myself formed.
In looking at the character of Edward Livingston, the
quality which first invites attention is the very uncom
mon breadth of his sympathies. Whatever rightfully
interests human beings, government, laws, knowledge,
science, taste, society, civilization, affairs, amusement,
religion, had always a genuine and hearty interest
for him. This imparted the peculiar zest which he found
in the simple acquisition of knowledge, a zest which
with him continued to be as keen in old age as it had
been in youth, and which led to the variety and depth of
his merely intellectual attainments, gained, as they were,
during an unceasing whirl of active labor, care, and ex
citement.
The same quality, not less than simple benevolence, was
the foundation of his philanthropy, in which there was
not a tinge of bigotry or austerity. His scheme for the
reformation of penal jurisprudence, cherished and worked
upon during all his adult life, never became a rigid and
unalterable theory, but was the subject of improving
touches from time to time, such as came from continued
reflection, or from new light laboriously gained.
From this pervading human interest came the prac
tical, many-sided capacity which enabled him to pass
rapidly through various employments, those of advo
cate, legislator, executive, judge, publicist, cabinet minis
ter, and diplomatist, and to easily distinguish himself in
436 LIFE OF EDWARD LIVINGSTON.
all, without ever ceasing to be a loving relative, a genial
friend, and a jovial companion.
The innate democracy of his spirit proceeded from the
same source. He estimated men, even kings, at what,
upon candid scrutiny, he found to be their inherent value.
Neither in his public writings and speeches, nor in the
mass of his unpublished manuscripts which I have exam
ined, have I discovered a word to indicate that he deemed
his birth to be better than that of any other American
citizen. He was proud of his brother s public services,
of his father s virtues, and of his grandfather s accom
plishments, but seemed scarcely to have heard that the
family pedigree extended further. In his intercourse
with men, public and private, he always stood squarely
upon his intrinsic merits. When he undertook the office
of Secretary of State, he solemnly measured his qualifi
cations by those of his predecessor, and sincerely dis
trusted his own. A man of narrower, though equally
powerful mind, might have found his judgment, in such
a comparison, influenced in some degree by the fact that
the other was a self-educated son of a farmer in the same
county where his own family name had been a somewhat
lordly one for several generations.
Considering his great abilities, his strong inclination
to public affairs, and the circumstances which so greatly
favored his political advancement, the moderateness of
his ambition was a striking and singular trait. In his
democratic opinions there was no mixture of demagogic
views. Heartily aiming to win distinction, he was not
accustomed to fear or court
" The rabble s noisy censure or applause."
The reputation which he desired and strove after he had
no idea of attaining except by well and clearly earning
it. I scrutinized the whole mass of draughts of letters
CONCLUSION.
437
which he left, in order to see if a single sentence in them
indicated that he had, at any time, aimed to reach a
higher office than he enjoyed, namely, the Presidency
of the United States ; and it did not appear that such a
thought ever entered his mind. In this he is a hright
example, if they would only observe it, to those troops of
scantily cultured men who coarsely aspire to the chief
magistracy of a great nation, avithout taking anything like
corresponding pains to make themselves qualified to adorn
a station so exalted.
As for his intellect, it was one of general acuteness
and uniform power, without any dull side or any dazzling
gift; just as his writings and speeches present few salient,
distinct, and quotable beauties, but rather a steady felicity,
a constant power, and a pervading eloquence.
But this grand capacity was not perfectly rounded.
One faculty it signally lacked. At no period of his life
was he competent, practically, to manage financial affairs.
In this one regard he was not much more than a child.
It was as if a guardian genius had purchased for him
gifts sufficing for all other emergencies, by debarring
him from one important endowment which even the
stupid often possess. If the dull favorites of Mammon
ever envied his shining parts, they perhaps found com
fort in the substance of the maxim from Chaucer,
" The gretest clerkes ben not the wisest men."
His moral nature was a rare assemblage of con
trasted virtues. The courage and force of will with
which, at the age of forty, he set about the mending
of his suddenly broken fortunes, the fortitude with
which he afterwards bore up against the disappoint
ments of twenty years, and the tremendous combative
energy with which he conducted the controversy against
Jefferson, would seem to be qualities of so hardy a
438 LIFE OF EDWARD LIVINGSTON.
kind as to be likely to choke out some of the more re
fined principles which have their seat in the heart. But
with him it was not so. Prosperity had not spoiled,
and adversity could not sour him. During his long
buffet with misfortune he did not become capable of
harboring resentment ; he " spoke no evil " of his ad
versaries; he grew eager to forgive the man who had
inflicted on him what he never ceased to think was a
capital injury: at the same time he made free sacrifices
to local public good, and went through gigantic labors
for the good of his whole race ; while in the little things
of every-day life he had abundant sympathy, and no
scorn for the thoughts and feelings of all who came
about him.
In the cardinal points of morality his life-long con
duct appears to have been blameless. His writings,
public and private, contain frequent traces of religious
faith and religious sentiment, but no trace of theologi
cal views.
The single flaw which I have found in this character
in reality there may have been others which I have
failed to perceive, but, if there were such, they must
have been of a minor and not palpable sort, I am per
suaded sprung from the defective faculty which has
been often noticed in these pages. The owing of debts
after they are due, when it becomes a settled habit,
even though starting out of pure misfortune, and not
accompanied by any deliberate or conscious intention to
do wrong, must, it would seem, beget in the course of
a lifetime a less active consideration for the rights of
deferred creditors than is consistent with a perfect sense
of justice. This habit is the cause of shipwreck to many
not unpromising characters ; it is a rock of danger to
any but the stanchest in general principle ; and the suf-
CONCLUSION. 439
fering which it always costs the man upon whom it gets
fastened, however great or good he may be, furnishes,
wherever it is seen, an important lesson.
From so much excellence this surely is a small de
duction. After it is allowed as freely as it may be, the
character of Livingston remains one in which we may
say, speaking with the limitations which belong to all
descriptions of finite worth, that there was nothing
sordid, nothing false, nothing coarse, a character on
the whole singularly heroic, simple, and Christian.
INDEX.
ADAIR, General, 202.
Adams, John, his action in the case
of Jonathan Robbins, 81.
Adams, John Quincy, his speech on
the conduct of France in failing
to fulfil the treaty of July 4, 1831,
422.
Alexander, Mr., his arrest by Gen
eral Wilkinson, 133.
Alien bill, in the House of Repre
sentatives, 75-80.
Ames, Fisher, member of Congress
in 1795, 64. His part in the dis
cussions upon Jay s treaty, 68, 73.
Analectic Magazine, 42, note.
Armstrong, General John, 16, 360.
Vide Letters and Extracts.
Armstrong, Mrs. John, 16, 114.
Ballard, Captain, 389.
Barton, Thomas P., his marriage to
Cora Livingston, 384. Secreta
ry of the French legation, Id.
Charge d Affaires, 400. Demands
passports, returns home, and reports
in person to the President, 426-
428. Vide Letters and Extracts.
Barton, Mrs. Thomas P., 384. Vide
Letters and Extracts.
Batture Ste. Marie, acquisition of, by
Edward Livingston, 115. Allu
sion to the controversy respecting
the title, /</., 122, 134. An ac
count of the controversy, 135-183.
Bayard, James A., leads the Feder
alists in opposition to Jefferson s
election, 85-87.
Benson, Egbert, 48, 50, 52.
Bentham, Jeremy, study of his writ
ings by Edward Livingston, 96,
note. Proposes the printing the
Livingston Code by Parliament,
278. Vide Letters and Extracts.
Benton, Thomas H., 283.
Bernadotte (Charles Jean), 108 and
note, 278 and note.
Blount, Mr., of North Carolina,
his resolutions on Jay s treaty,
67.
Bollman, Dr., his arrest by Gen
eral Wilkinson, 127. Presents a
draft on Edward Livingston from
Aaron Burr, 130. Carried un
der arrest to Washington, 133.
Broglie, the Due de, 401.
Buchanan, George, his " Rerum
Scoticarum Historia," i.
Burgoyne, General, surrender of, 36.
Burr, Aaron, mention of, 41, 48.
His country-seat, 46. Remarks
upon his duel with Hamilton, and
upon his character, 54-56. His
election to the Vice- Presidency,
84. His conduct during the elec
tion, 84-87. Gives to Dr. Boll
man a draft on Edward Living
ston, 130.
Burr, Theodosia, 97.
Butler, Benjamin F., 425.
Butler, Thomas L., 200.
Carleton, Judge Henry, 123, 125.
Vide Letters and Extracts.
Charles Jean (Bernadotte) of Sweden.
Vide Letters and Extracts.
Claiborne, W. C. C., Governor of
Louisiana, 140, 196, 197.
Clay, Henry, mention of, 283. A
senator of the United States, 330.
Leader of the opposition, 367.
Moves a scrutiny into the circum
stances of the settlement of ac-
INDEX.
counts between the United States
and Mr. Livingston, Id. Ac
quiesces in the confirmation of
the latter as Secretary of State, Id.
Yet maligns Livingston after his
death, Id., note.
Clermont, estate of Judge Robert
R. Livingston, 29. Visit of La
fayette at, in 1824, 44, note.
Clinton, De Witt, mention of, 73.
Resigns his seat in the United
States Senate to become Mayor of
New York, 90. His action in the
matter of the removal of Gen
eral Montgomery s remains from
Canada, 244-246. His death,
434-
Clinton, Sir Henry, 36.
Code, The Livingston, some ac
count of, 255-275. Its reputa
tion, 276-281, 381.
Crichton, Chancellor, i, 2.
Dallas, Alexander James, 367 and
note.
Dallas, George M., 357. His de
fence of Mr. Livingston in the
Senate, on the occasion of Mr.
Clay s scrutiny, 367. Vide Let
ters and Extracts.
D Avezac, Armand, 124 and note.
Davezac, Jules, translator of the Liv
ingston Code, 276 and note.
Davezac de Castera, Auguste, 125,
213. Acts as aid and judge-ad
vocate in the campaign for the de
fence of New Orleans, 200 and
note. Charge, d" 1 Affaires at the
Hague, 413. Vide Letters and
Extracts.
Davezac de Castera, Louise, her
marriage to Mr. Livingston, 124.
Her history and family, Id. Her
character, 125. Her influence
with her husband, 365, 366. Her
death, 432. Anecdote related by,
/</., note. Vide Letters and Ex
tracts.
Doll, Dominie, 31. His daughter,
Id. and note. His school at Eso-
pus, 33. Removal to Hurley,
37-
Douglas, Earl of, his murder at Edin-
boro Castle, 2.
Douglas, David, his assassination, 2.
Duane, James, his farm, 46. Mayor
56
and Judge, 48. His career, 49.
Decision in the case of Rutgers
<versus Waddington, 49, 50.
Du Ponceau, Peter S., revises the
press for Livingston s answer in
the Batture case, 179, 180. Cor
respondence with Livingston, 283,
287-294. His friendship for Liv
ingston, 287. Vide Letters and
Extracts.
Elliott, Commodore, 415.
Esopus (Kingston), 33-36.
Fleming, Sir Malcolm, his assassi
nation at Edinboro Castle, 2.
Foot s resolution, debate upon, in
the Senate, 330. Speech of Ed
ward Livingston upon, 330-351.
Forsyth, John, 400, 427, 428.
Franklin, Benjamin, allusion to, 26.
Gallatin, Albert, 64, 69, 73.
Garretson, Rev. Freeborn, 16.
Garretson, Mrs. Freeborn, 16, 424,
432. Vide Letters and Extracts.
Gates, General Horatio, 36.
Giles, William B., 39, 64, 68, 69,
73-
Grasse, the Count de, gratitude to,
expressed by Congress, 80.
Guatemala, adoption of one of Liv
ingston s codes in, 279. Public
mourning by, on the death of Liv
ingston, 434.
Hamilton, Alexander, 41, 48. His
first eminence as a lawyer, 49.
His argument in the case of Rut
gers versus Waddington, 49, 50.
Remarks upon his duel with Burr,
54-56. His action in congres
sional canvass at New York, in
79 6 > 73, 74-
Harrison, Richard, 90.
Hobart, John Sloss, 52.
Hoffmann, Josiah Ogden, 48.
Hotham, Commodore, 36.
Howe, Admiral, 36.
Huger, Mr., of South Carolina, 87.
Hugo, Victor, 277, 405. Vide Let
ters and Extracts.
Ingersoll, Charles J., anecdote re
lated by, 97. His character of
Livingston, 433.
INDEX.
Jackson, Andrew, a member of
Congress in 1796, 64. His vote
against the address to Washing
ton, 65. Appointed Major-Gen
eral, 197. Issues proclamations
from Mobile, Id. Repairs to
New Orleans, Id. His reception
and speech, Id. His intimacy
with Livingston, 198. Employs
the services of the latter in vari
ous capacities, Id. Declares mar
tial law, Id. Appoints Lewis Liv
ingston a Captain, 199. Reviews
the troops in the city, Id. Tri
umphal return to the city after the
repulse of the enemy, 201. In
fluence of Livingston over him,
202. His action in the case of the
brothers Lafitte, 203. His arrest
of Judge Hall, and subsequent an
swer for contempt of court, 207,
208. Presents his miniature to
Mr. Livingston, 208.. Plan of
writing his life by the latter, 209
and note. Becomes a senator of
the United States, 311. Growing
intimacy with Livingston, 312-
316. Support of, by the latter, in
1824 and 1828, 316. His entry
upon the Presidency, 326. -Veto of
internal improvement bills, 353.
Dissolution of the Van Buren cab
inet, 357. His manner of urging
the Secretaryship of State upon Mr.
Livingston, 358. His proclama
tion to nullifiers, 371-381. Ap
points Mr. Livingston Minister to
France, 387. His irritation at the
failure of the French government to
fulfil the treaty of July 4, 1 8 3 1 , 394.
His instructions to Livingston,
400. His approval of the con
duct of the latter, Id.^ 422. Re
ceives Mr. Barton s final report of
the state of the affair with France,
428. His message to Congress
thereon, 428-430. Vide Letters
and Extracts.
Jay, John, 40. His treaty consid
ered in the House of Representa
tives, 67-73.
Jefferson, Thomas, his election to the
Presidency in the House of Rep
resentatives, 84-88. Appoints Ed
ward Livingston Attorney of the
United States at New York, 90.
Invests General Wilkinson with
extraordinary powers in the matter
of Burr s scheme against the gov
ernment, 127. His Batture con
troversy with Edward Livingston,
I 35~ I 83. His pamphlet on that
subject, 143. Extracts therefrom,
144, 145, 171, 173, 175, 177.
His remarks on the Livingston
Code, 281. Vide Letters and Ex
tracts.
Johannes Secundus, a translation
from, 42, note.
Kent, James, 48, 52, 222. Vide
Letters and Extracts.
Kidd, Captain, his commission as
privateer, and conduct as pirate,
9, 10.
King s College (Columbia), 30.
Kingston (Esopus), 33-36.
Knox, Rev. John, allusion to his
" Historic," etc., 3.
Kossuth, Louis, 279.
Lafayette, General, his early in
timacy with the family of Mar
garet Beekman Livingston, 43.
His attentions to Edward Liv
ingston, 44. His visit to Amer
ica in 1824, Id.) note. His atten
tions to Lewis Livingston, 250-
252. His death, 409. Vide
Letters and Extracts.
Lafitte, the brothers, 203, 204.
La Rochefoucauld-Liancourt, 74.
Latour, Major A. Lacarriere, 199,
215 and note.
Lawrence, Major William, 197.
Leef General, 39.
Lee, Henry, his appointment to
office by President Jackson, and
rejection by the Senate, 353, 354.
Letters and Extracts. Margaret Beek
man Livingston to Mr. Vander-
kemp, 58,60. Jeremy Bentham to
Edward Livingston, 351. Berna-
dotte (Charles Jean, of Sweden)
to the same, 278, note. George
Clinton to the same, 104. Peter
S. Du Ponceau to the same, 287.
Victor Hugo to the same, 277,
405. Andrew Jackson to the
same, 312, 313, 323, 371, 372.
John Jay to Chancellor Living
ston, 40. Thomas Jefferson to Ed-
INDEX.
ward Livingston, 281, 284, 294.
James Kent to the same, 181, 280.
Lafayette to the same, 108, 327,
382, 409. The same to Mrs.
Richard Montgomery, 43. Ma
dame Lafayette to Edward Living
ston, 108, note. Edward Living
ston to General Armstrong, 360.
The same to Jeremy Bentham,
96, note, 118, note. The same to
the Due de Broglie, 401. The
same to Judge Carleton, 360.
The same to George M. Dallas,
360, 364, 368, 369, 370, 411.
The same to Auguste Davezac,
413, 415. The same to Peter
S. Du Ponceau, 45, 179, 283, 288,
289, 291, 292, 298. The same to
Mrs. Garretson, 113, 413. The
same to the Howard Society of
New Jersey, 406. The same to
his daughter, 325. The same to
his son, 189, 191, 192, 213-243.
The same to his wife, 358, 361,
366, 430. The same to H. Mar
shall, 369. The same to members
of Congress, 175. The same to
Mrs. Montgomery, 199, 201, 211.
The same to Timothy Pickering,
317. The same to the Comte de
Rigny, 398. The same to Mrs.
Tillotson, 125, 1 88. Julia Liv
ingston to her father, 187. Lew
is Livingston to the same, 212,
250. The same to Mrs. Mont
gomery, 198, 201, 247. Robert
Livingston (the 2d) to his grand
son, 19, note. Judge Robert R.
Livingston to his wife, 17. The
same to his father, 22, 27. The
same to his son, 23, 25. Chan
cellor Robert R. Livingston^ to
Edward Livingston, 75. Eti-
enne Mazureau to the same, 121.
Nicolas, Emperor of Russia, to
the same, 278, note. John Ran
dolph, of Roanoke, to the same,
382. Captain John Reid to the
same, 209, note. Martin Van
Buren to the same, 356, 400.
William P. Van Ness to the
same, 86. M. Villemain to the
same, 404. Daniel Webster to
the same, 298.
Lewis, General Morgan, 16, 44, note,
Lewis, Mrs. Morgan, 16.
Lewis, Major, 380.
Linlithgovv, Earls of, 3, 5, note.
Livingstons of New York, their
Scotch pedigree, 1-5. Early in
fluence of the family in New York,
and its decline, 12, 13.
Livingston, Brockholdst, 11,48,53,
.54-
Livingston, Charles Edward, 90, 101.
Livingston, Edward, mention of, u.
His birth, 15. Childhood, 29.
Family influences, 30. His rem
iniscences of General Montgom
ery, 32. Schools, 33. First din
ner at Esopus, Id. School-life,
Id. , 34. Enters college at Prince
ton, 38. His residence there, and
graduation, 39. His habits of
study at college, Id. Early intel
lectual tastes, 40. Study of law,
41. Predilection for the civil law,
Id. Admission to the bar, Id.
Increased application to study, 42.
Habits and tastes, Id. Poetical
compositions, Id. Acquaintance
with Lafayette, 43-45. Extract
from a letter to Du Ponceau, 45.
Early practice of the law, 56-59.
His habits at that period, 58.
Lines to Longinus, 58, 59. His
marriage, 59. His first election
to Congress, 59-61. Canvass in
1794, 61-64. His first congres
sional career, 64-88. A member
of the opposition under Wash
ington s and Adams s administra
tions, 64. Vote against address
of the House to Washington, 65.
Action on the trials of Randall
and Whitney, Id., 66. Efforts in
behalf of American seamen, 66,
67. Course and speech upon Jay s
treaty, 67-71. Exertions in be
half of Lafayette at Olmutz, 73.
His second election to Congress,
Id., 74. Notice of, by La Roche-
foucauld-Liancourt, 74. He op
poses the establishment of the Na
val Department, 75. Speech on
the Alien bill, 76-79. On the Se
dition bill, 80. Efforts for the re
lief of the daughters of the Count
de Grasse, Id. Third election to
the House, 81. Resolutions re
flecting upon the course of Presi-
444
INDEX.
dent Adams in the case of Jona
than Robbins, Id. Debate there
on, 82. Earliest efforts towards a
reformation of criminal law, 83.
Course in the election of Jefferson
by the House of Representatives,
84-87. Death of his wife, 89.
Names of his children, 90. Ap
pointment as Attorney of the Unit
ed States, Id. And as Mayor
of New York, Id. His quali
ties, 91. His industry in office,
92. Prepares a volume of law
reports, Id. Lays the corner
stone of the city-hall, 93. Proj
ect for the prevention of pauper
ism and crime, addressed to the
Mechanic Society, 93-97. Study
of Bentham s writings, 96, note.
Social traits, 97, 98. Conduct
during the prevalence of yellow-
fever, 98-100. Illness and recov
ery, 100. His position at that
period, Id. His first great mis
fortune, 1 01. His debt to the
United States, and the manner of
incurring it, 101104. Conduct
in that difficulty, 104. Resigna
tion of offices, Id. Remains at
his post till the subsidence of the
epidemic, Id. Is succeeded in the
mayoralty by De Witt Clinton,
105. Public and private homage
paid to Livingston, 105-107. Re
solves to emigrate to Louisiana,
109, no. Sails for New Orleans,
no. The voyage, in. New
Orleans and its population in 1804,
Id., 112. Character of the Cre
oles, 112, 113. Energy of Mr.
Livingston ; his activity at the bar,
113. His success, 115. Acqui
sition of the Batture Ste. Marie,
Id. Allusion to the Batture con
troversy, Id. Mr. Livingston s
character as a lawyer, 116. His
public spirit, Id. He opposes the
introduction of common-law prac
tice in Louisiana, Id., 117. Pro
poses and frames a code of pro
cedure, 117, 1 1 8. Its adoption,
its features, Id. A confusion of
tongues in the courts, 118, 119.
Address before a Masonic lodge,
119,120. Mr. Livingston s meth
od in advocacy, 120, 121. His
supremacy at the bar, 121. Social
characteristics, 122, 123. Interest
in mechanics, 123. Homesick
ness, 124, 125. Second marriage,
Id. Domestic happiness, and suc
cess in business, 125, 126. Ob
stacles and dangers, 126. Calum
nious attack by General Wilkin
son, 126-134. Spirited resistance
by Mr. Livingston, Id. Bright
prospects, 134. The Batture con
troversy, 135183. His answer to
Jefferson s pamphlet, 143. Ex
tracts therefrom, 146-180, 182.
Circular letter to members of
Congress on the subject, 175.
Temper of Mr. Livingston, 184.
Effects of the Batture controversy
upon his affairs, Id., 185. Anec
dotes, 185, 1 86. Love of poetry,
1 86. Fragment of translation from
Horace, 187. Anxiety to be re
united to his children, Id. A voy
age to New York, 188. Death
of Julia, Id. Her father s grief,
Id. Mr. Livingston s services in
the campaign for the defence of
New Orleans, 195. His qualifi
cations for the emergency, Id.
Delivers a speech at a meeting of
citizens, 196. Serves on a com
mittee of safety, Id. Draws up an
address of the committee to the
people, Id. Corresponds with
General Jackson at Mobile, 197.
Assists on public reception of Jack
son at New Orleans, Id. Serves
in various capacities under Jackson,
198. Reads an address before the
troops, December 18, 1814, 199.
Acts as aide-de-camp at the battle
of December 23, Id., 200. Nolte s
anecdote, 200. Influence in Jack
son s military councils, 202, 203.
Confides the safety of his family to
one of the Lafittes, 204. Draws
up " General Orders " and address
to the army, Id. Is sent to ar
range cartel for exchange of pris
oners, and is detained at the Brit
ish fleet, 206. Returns home with
news of peace, 207. Draws up de
fence of General Jackson before
Judge Hall, 208. Is presented by
General Jackson with the latter s
miniature, Id. Harmony and con-
INDEX.
trast between him and Jackson,
210. Renewal of the struggle
for pecuniary independence, 211.
Parts a second time with his son,
212. Unsuccessful pecuniary en
terprises, 243, 244. Adverse de
cision of the court in the Batture
case, 247. Mr. Livingston s for
titude on that occasion, 248. He
accepts a seat in the Louisiana
legislature, 249. His industry in
that body, Id. His labors upon
the civil code of Louisiana, Id.
Commences the construction of his
system of penal law, Id. Sends
his son to Europe for his health,
250. Death of Lewis, 253. In
tensity of the father s grief, 254.
He finds a solace in labors upon
his penal code, Id. Is elected
to revise the criminal law of
Louisiana, 255. His qualifications
for the task, /</., 256. Reports
his plan, 257. Its approval by the
legislature, Id. Completion of the
work, Id. Its destruction by fire,
and reproduction, Id., 258, 291,
292, 293, 298. Condition of
criminal laws of Louisiana in
1820, 258-262. Some account
of Livingston s system, 262-275.
His explanatory addresses to the
legislature, 274. Failure of the lat
ter to act upon the proposed system,
Id. Effect of its publication abroad,
Id., 275. Reputation of the Code
and of its author, 276-281. Mr.
Livingston s election to Congress
from Louisiana, 282. His position
in the House, Id. Speech on roads
and canals, 287 and note. Speech
on the bill to amend the judicial
system, and on the equality of the
States, 299-303. On the services
of Chancellor Livingston in the
purchase of Louisiana, 304-309.
Exertions in behalf of the interests
of Louisiana, 309. Attention to
national works and projects, Id.
Payment of his debt to the United
States, Id., 310. Manners and so
cial habits, 310, 311. Growth of
the intimacy with General Jackson,
312316. Support of Jackson for
the Presidency, in 1824 and 1828,
316, 317. Visit, public dinner,
and speech at Harrisburg, 317-
322. Defeat as a candidate for re
election to the House, 322, 324.
Address to constituents during the
canvass, 323. Election to the
Senate of the United States, 324.
Satisfaction of Livingston s am
bition, 325. Promulgation of his
penal system, Id. His social and
domestic tastes, Id. The desire
of the President to employ him
in the government, 326, 329. Of
fer and declination of the mission
to France, 329. Speech on Foot s
resolutions, 330-351. Vindication
of himself, General Jackson, and
others, for their vote in the fourth
Congress against the address to
Washington, 332-342. Remarks
on the Constitution and the theory
of the Federal Government, 345-
347. On the advantages of the
Union, 348-351. Plan of adapt
ing the Livingston Code to the use
of the General Government, 352.
Senatorial independence, 353, 354.
Inheritance of the fortune of Mrs.
Montgomery, 355. Retirement
to Montgomery Place, 356. Sum
mons to Washington, and offer
and acceptance of the post of Sec
retary of State, 356-359. Diffi
dence as to his qualifications for
that office, 359, 360. Official la
bors, 362. Personal and social
characteristics, absence of mind,
punning, etc., 363-366. Scrutiny
by the Senate into the circum
stances of the settlement of ac
counts between the United States
and Livingston ; his confirmation
as Secretary of State, 367. His
silence on that occasion, 368. His
independence in office, Id., 369.
His refusal to countenance a cal
umny upon Mr. Clay, 369. His
position upon the President s bank
policy, 370. He draws up the proc
lamation to the people of South
Carolina, of December 10, 1832,
371-381. Continued growth of
his reputation as a publicist, 381,
382. His election to the Institute
of France, 382. Acquaintance
with de Tocqueville, 384. Tribute
to him by the latter, 385. Unsuc-
446
INDEX.
cessful attempts to keep a diary,
386-390. Resignation as Secre
tary of State, and appointment to
the French legation, 387. Voy
age to France, 388, 389. Active
attention to the business of the
mission, 390-404. Is offered pass
ports by the French government,
396, 397. He refuses them and
awaits instructions, 397. Answer
to the Comte de Rigny, 397-399.
Approbation and further instruc
tions by the President, 400. De
mands his passports upon the
conditional appropriation by the
Chamber of Deputies of the money
due from France to the United
States, 401. Parting letter to the
Due de Broglie, Id. Continued
attention of Livingston to the
promulgation of his views upon
penal law, 404-408. Latest in
tercourse with Lafayette, 409.
Journey through Switzerland and
Germany, 410. De Sellon s mon
ument, Id. Interview with Mit-
termaier, 411. Social traits and
temper, /;/. Correspondence, 41 2.
Regard for Davezac, 413. Res
angusta domi, 414. Farewell to
Davezac, 415. Homeward voy
age, Id. Popular greeting at New
York, 416. Public dinners and
speeches, 416-422. Approbation
of his conduct by the government
and the country, 422. Retirement
to Montgomery Place, 423. Oc
cupations and associations there,
423-425. His last visit at Wash
ington and appearance in the Su
preme Court, 425, 426. Tribute
to Jefferson, 426. Visit at the
White House with Mr. Barton,
427, 428. Consultation with the
President as to a special message
to Congress relative to the affair
with France, 428, 429. Return
to Montgomery Place, 431. Last
illness and death, /</., 432. Pub
lic and private honors paid to his
memory, 433, 434- His charac
ter, 434-439. Vide Letters and
Extracts.
Livingston, Gilbert, 10, 12.
Livingston, Henry B., 16, 32, 44,
Livingston, Rev. John H., 12.
Livingston, John R., 16, 24,43, IIO
4 2 3-
Livingston, Julia E. M., 90, 114, 187,
1 8 8. Vide Letters and Extracts.
Livingston, Lewis, 90, 114, 189, 194,
198, 199, 212, 244,246,247, 250,
2 5 2 > 2 53- Vide Letters and Ex
tracts.
Livingston, Manor of, 6-ir.
Livingston, Peter R., 16.
Livingston, Mrs. Peter R., 16.
Livingston, Philip, second proprietor
of Livingston Manor, 10.
Livingston, Philip, signer of Decla
ration of Independence, n.
Livingston, Philip, a competitor of
Edward Livingston for Congress
in 1798, 61.
Livingston, Robert, ancestor of the
Livingstons of New York, 5-10.
Livingston, Robert, (the 2d,) 10, n,
1 8-2 1. Vide Letters and Extracts.
Livingston, Robert, last proprietor
of the Manor, 10, u.
Livingston, Robert, 12.
Livingston, Judge Robert R., (father
of Edward Livingston,) n. His
death, u, 30. His family, 15,
16, 30. His marriage, 16. His
character, 21, 27. A member of
the Stamp Act Congress, 21.
His judicial independence, 26.
His character as drawn by his
wife, 27. By Smith, the histo
rian, Id. His country-seat, 29.
His town-house, Id., 56. Vide
Letters and Extracts.
Livingston, Mrs. Robert R., (Mar
garet Beekman, mother of Ed
ward Livingston,) 16, 27, 28, 37,
38, 45, 56-58, 60, 89, note. Vide
Letters and Extracts.
Livingston, Chancellor Robert R.,
ir, 15, 19, note, 20, 26, 30, 35,
48, 108, 193, 361, note. Vide
Letters and Extracts.
Livingston, William, Governor of
New Jersey, n.
Livingston, William S., 50.
Livingston Creek, 9.
Livingstone, Sir Alexander, of Cal
endar, r, 2, 3.
Livingstone, Alexander, fifth lord, 3.
Livingstone, Alexander, seventh
lord, created Earl of Linlithgow, 3.
INDEX.
447
Livingstone, Rev. Alexander, 4, 5,
note.
Livingstone, Sir Alexander, present
claimant of baronetcy and earl
dom, 3.
Livingstone, James, first lord, 3.
Livingstone, John 4, 5, note.
Livingstone, Rev. John, 4, 5.
Livingstone, Mary, maid of honor to
Mary Stuart, 3.
Livingstone, Thurstanus, 3, 4.
Livingstone, Rev. William, 4, 5,
note.
London, Samuel, printer, etc., 47.
Louis Philippe, 383, 391, 392, 395,
39 6 /
Louisiana, purchase of, 107, 108,
304-308.
Madison, James, member of Con
gress in 1795, 64. Course on
Jay s treaty, 68, 69, 73.
Maine, Dr. H. S., his remarks upon
Edward Livingston, 278 and note.
Marshall, John, his first appearance
in Congress, 81. Speech on Mr.
Livingston s resolutions in the
case of Jojtathan Robbins, 82, 83.
Mazureau, Etienne, 121, 122, 24Q.
Vide Letters and Extracts.
McEvers, Anna, 59.
McEvers, Charles, 59.
McEvers, Eliza, 59, no.
McEvers, Mary, her marriage to
Edward Livingston, 59. Her
person and character, Id. Her
death, 89.
McLane, Louis, 358, 391, 392, 394,
395 and note.
Mignet, M., his eulogy upon Liv
ingston, 434 and note.
Mitchill, Dr. Samuel L., 84, 217.
Mittermaier, Professor, anecdote of,
411.
Monroe, James, his share in the pur
chase of Louisiana, 108, 304, 308.
Montgomery, General Richard, 15,
20, 31, 32, 244-246.
Montgomery, Mrs. Richard, 15, 31,
32, 45, 245, 246, 355. Vide Let-
ters and Extracts.
Montgomery Place, description of,
355-
Nash, Thomas, alias Jonathan Rob-
bins, the case of, 81-83.
Naval Department, establishment of,
75-
Netherlands, the King of the, sends
a medal to Mr. Livingston, 279.
New York, city of, in 1785, 46, 47.
Sketches of members of the bench
and bar in, after the Revolution,
48-56.
Nichols, Colonel, his attempt to in
duce Lafitte to join the British in
the invasion of New Orleans, 203.
Nicolas, Emperor of Russia, 278.
Vide Letters and Extracts.
Nolte, Vincent, 200 and note.
Parton, James, references to his Life
of J.ackson, 370, 380.
Princeton College, 38, 39.
Putnam, General, 39.
Randall, Robert, trial of, 65, 66.
Randolph, John, of Roanoke, 283,
382, note. Vide Letters and Ex
tracts.
Reid, Captain John, 200, 208, 209
and note. Vide Letters and Ex
tracts.
Rigny, Comte de, 396, 397, 400.
Ritchie, Alexander H., engraver of
the plates in this volume, 208,
note.
Rives, William C., 329.
Robbins, Jonathan, alias Thomas
Nash, the case of, in Congress,
81-83.
Schuyler, Alida, 6, 10.
Schuyler, Margaretta, 12.
Schuyler, Pieter, 6, 12.
Sedgwick, Theodore, a member of
Congress in 1795, 64. He takes
part in the discussions upon Jay s
treaty, 68, 69.
Sedgwick, Theodore, Junior, 416.
His character of Livingston, 433.
Sedition bill, in the House of Repre
sentatives, 75-80.
Sellon, M. de, 410.
Sempill, Lord, 3.
Serrurier, M., 396, 397.
Slavery, in the State of New York,
3-
Smith, Melancthon, 48, 51.
Smith, Dr. Southwood, 276.
Smith, William, historian of New
York, 27.
448
INDEX.
Taillandier, M., his remarks upon
the Livingston Code, 278.
Taylor, Daniel, (the British spy,)
execution of, 36.
Tillotson, Mr. and Mrs. Thomas, 16.
Vide Letters and Extracts.
Tocqueville, Alexis de, 384, 385.
Troup, Robert, 48.
Valle, M., painter of General Jack
son s miniature, 208, note.
Van Buren, Martin, 283, 356, 358,
367, 400, 427, 428, 436. Vide
Letters and Extracts.
Van Ness, William P., 86.
Varick, Richard, 51, 90, 91.
Vaughan, General, 36.
Verplanck, Gulian C., 42, note.
Villemain, M., his remarks on the
Livingston Code, 277, 278, 404,
45-
Waddell, W. Coventry H., his rem
iniscences of Edward Livingston,
3 6 3> 3 6 4 :
Wallace, Sir James, 36.
Watson, James, 61, 74.
Watts, John, 61.
Webster, Daniel, in the House of
Representatives, 283. In the Sen
ate, 330. In the Supreme Court,
425. Vide Letters and Extracts.
White, Hugh L., 358.
Whitney, Charles, his trial, 65,
66.
Wilkinson, General James, his pro
ceedings against Mr. Livingston
and others at New Orleans in
1806, 126-133.
Witherspoon, Dr. John, his career
and character, 38, 39.
Woodbury, Levi, 358.
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