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 LIFE AND SERVICES 
 
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 OF 
 
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 EDWARD LIVINGSTON I 
 
 ADDRESS OF 
 
 CARLETON HUNT, 
 
 MAY 9, 1903. 
 
 On the Occasion of the Annual Meeting of the Louis- 
 iana Bar A^ociation, in the Chamber of the 
 Supi^'me^ Court of the State of 
 Louisiana, New Orleans. 
 
 ' .NEAV ORLEANS, LA.: 
 
 J. G. Hauser, "The Legal Printer," 402 Camp Street. 
 
 1903. 
 
H3 
 
 I 
 
J/eiv Orfeans, J/a/^ 30th, 7903. 
 
 -•/fty dear K^/r: 
 
 kJ t/iinli a reuision ceslraS/e of 
 
 second paraqrap/i, pa(fe 37, o7 t7ie address, 
 on ^c7ivard l^iinngston, w7iic7i U 7iac7 recent/^ 
 
 tTie 7ionor to senc7 lyo i. 
 
 ^ reauest, t7ie retire, (if lyoii 7iave Tiept 
 tTiLS address) t7iat lyoi ivlll substitute in line 
 one {7) for t7ie word ending" t7ie folloiving — 
 7872=20, made q/orious Sty — and if lyou ivitl in= 
 
 sert line nine (5^) saaie para^rapTi — t7ie line 
 
 before tTie last — after tAe word secession, tTie 
 
 folloivina words — as imputed to tTie yJiartford 
 
 C on If en tion . 
 
 Veru truliy an*) respectfully yours. 
 
LIFE AND SERVICES 
 
 OF 
 
 EDWARD LIVINGSTON. 
 
 Address of Carleton Hunt. 
 
 Mr. President, Ladies and Gentlemen: 
 
 A great profession advances itself when it honors its illustrious 
 men. It is not easy to think of a more appropriate time than 
 the present annual meeting- of the Bar, to place before the As- 
 sociation a narrative of the life and services of Edward Living- 
 ston, or a more suitable place for doing so, than this historic 
 chamber of the Supreme Court of the State of Louisiana, where, 
 in the gallery about us, his bust (taken from the original work 
 of art in marble by Ball Hughes, which is at INIontgomery Place,) 
 now holds a place of honor. The influence of Mr. Livingston in 
 laying the foundations of this State, and of its jurisprudence, 
 when he was facile princeps at the Bar of New Orleans, was pow- 
 erful. The very recent celebration in this court room of the one 
 hundredth anniversary of the Cession of Louisiana by France to 
 the United States — a great public transaction which, more than 
 that of anybody else, was the work of Robert R. Livingston, 
 l)rother of Edward Livingston ; the close neighborhood of this 
 ancient building, once the seat of the Spanish Cabildo, to Jack- 
 son Square, formerly the Place d'Armes, where Mr. Livingston, 
 standing side by side with General Jackson, addressed in tones 
 that w^ere never forgotten by those who heard him, the serried 
 ranks of the American soldiery, and rallied them in the victori- 
 ous campaign of 1814-15 to the support of the flag of their 
 country at the battle of New Orleans, are suggestive of asso- 
 ciations wdth his name. Although sixty years have elapsed 
 since the close of his career of usefulness and honor in public 
 life, his history as it lies before us, is full of interest and instruc- 
 tion, and proves him to have been, not only a jurist, the ornament 
 of the entire American Bar, but also an enlightened statesman, 
 devoted to the cause of our common country, and a philanthropist 
 
 361039 
 
far in advance of the time in whieh ho lived, — in point of fact, the 
 Champion of Law Reform in the United States. 
 
 Edward Livingston was horn at CU^rmont, Colnmhia County, 
 Ts'ow York. May 20. A. 1). 17(54. He was descended from an 
 ancient and nohle family of lowland Scotch. Sir Alexander Liv- 
 in{.rstt)ne, of Calendar (A. D. 1487), was one of the two joint 
 rejrents during the minority of Jamc"! IL of Scotland. The magic 
 pen of Sir Walter Scott has surrounded with the halo of Romance 
 the name of his daujrhter. Mary Livin<rstonc. who was one of the 
 "four Marys," maids of honor to the unfortunate ^lary, Queen 
 of Scots, brou^'lit up to be her companions. ^lary Living- 
 stone shared the impri.sonment of Queen Mary in the Castle of 
 Lochleven, and, as I find, the perils of the attempted rescue 
 of the royal captive. Tiie earldoms of Linlithgow, and Calendar 
 and the title of Viscount of Kilsyth were held at different times 
 by the Livingstons. 
 
 The grandson of the fifth Lord Livingston, the Reverend John 
 Livingston, was a celebrated preacher, lie was one of two com- 
 mi.ssioners to negotiate at Breda, the accession of Charles IL to 
 the throne of Scotland. His son, founder of the family of the 
 Livingstons of New Yoru, was born in Scotland. A. D. 1654. He 
 was a bold and ambitious iniiii. lb- married Alida. widow of 
 Nicholas Van Rensselaer, born Schuyler, and A. 1). 1(186, became 
 by Icttccs i>at<'iit duly confirmt'd first Lord of the Manor of Liv- 
 ingston. 
 
 The first Lord divided his ample domain of one hundred and 
 si.xty thousand acres at his d(>ath. The upjier manor he be- 
 queathed to his eldest son. Philip Livingston. He bestowed the 
 lower manor of Clermont upon his second son named Robert. 
 This second son was a man of learning and of high character, and 
 an ardent patriol. who transmitted to tliose who came after him 
 his love of American independence. lie died A. 1). 177;"). He 
 was fatlier of Robert R. Livingston, .judge of tlie Supreme Court 
 of the Colony uf New ^'oik. who also died A. D. 1775. As the 
 name of Robert was handi'd down fiimi fatlier to son. the latter 
 wrote it Robert H.. which stood for K(»bert Robert. The signifi- 
 cancy, or real meaning, belonging to the repetition of the Chri.s- 
 tian name is Robert the son of Robert. Judge Livingston also 
 
adhered to the patriot cause. He was admitted to a seat in the 
 Stamp Act Congress of 1765. He was author of the address to 
 the King of England to hold inviolable the rights of the colonies, 
 and to preserve sacred the right of trial by jury. Judge Living- 
 ston married Margaret, daughter of Colonel Henry Beekman. 
 Mrs. Livingston, when offered protection for the family mansion 
 at Clermont by the British, declined it rather than accept any 
 advantage over her neighbors and countrymen. The house was 
 set fire to and burned in consequence. Mrs. Livingston was 
 revered by all who knew her, for her virtues and strength of 
 character. The family, issue of this marriage, endeared them- 
 selves to the people by their devotion to the patriot cause. Robert 
 R., and Edward, became illustrious men. Henry Beekman Liv- 
 ingston was a Colonel in the Revolutionary Army. Congress 
 voted him a sword for gallant services. He w£ a dear friend of 
 Lafayette. Janet, eldest daughter, married Richard Montgomery, 
 Gertrude became the wife of General Morgan Lewis. Alida mar- 
 ried John Armstrong, Secretary of War, Minister to France, 
 Senator of the United States. 
 
 The early life of Edward Livingston, his career at the Bar of 
 the City of New York, and his first Congressional service of six 
 years as Representative from the State of New York, were passed 
 in the time of American Constitutional formation and early 
 growth. Burke declared that by the battery of questions which 
 the colonists had raised, they had shaken the solid foundations of 
 the British Empire. Lord Chatham said to the House of Lords, 
 that when they looked at the papers transmitted from America, 
 and when they considered their decency and fairness, they could 
 not but respect the cause, and wish to make it their own. 
 
 At the age of nine, Edward Livingston lost (A. D. 1775) both 
 his father, Judge Livingston, and his brother-in-law, Richard 
 Montgomery. He was witness to the parting of the latter with his 
 w^ife. The scene sank deep into his heart and agitated it strangely. 
 The fall of Montgomery before Quebec, the same year, was the 
 costly offering of Janet Livingston, and of Yier family upon the 
 altar of their country, and identified them with the Revolution, 
 as nothing else could have done. 
 
 A. D. 1779, Edward Livingston became a member of the Junior 
 Class, Nassau Hall, Princeton. The college resumed its courses of 
 
instruction that year after long interrui)tiou. He graduated at 
 seventeen. Priiieeton witnessed some of the most stirring scenes 
 of the war. Washington, before adjournment in 177(3, had been 
 invested by Congress with the powers of a Dictator. There 
 was no tiarker time in the course of the great struggle than 
 when he retreated across the Jerseys. Hut In- tui-ned at last 
 upon his i)ur^uers and earned tlic appellation of the American 
 Fabius. He re-crossed the freezing Delaware and December 26, 
 1776, fought the battle of Trenton, lie rode in the advance with 
 a battery of artillery. He remained with it when it unlimbered. 
 He exposed himself freely to danger, and, as his habit was when 
 he was aroused and in action, refused all appeals that he shoidd 
 fall back. He moved forward with his column to the head of 
 King street, and himself directed the fire of the guns. The battle 
 near Princeton took place Januarj' 3. 1777. fleeting near Clark's 
 house, as he galloped to the front. ]\Iercer's troops in full retreat, 
 Washington rallied their broken ranks. Gallantly mounted on a 
 white horse, a conspicuous mark for the enemy, he waved his hat 
 on iiigh. He called on his men to follow, and led them, taught by 
 his example, through the storm of battle to victory ! He pushed 
 on to Princeton. A party of British had taken refuge in the 
 college, but after receiving a few discharges from the American 
 field pieces they surrendered. Dr. Withersj)oon, the President, re- 
 turned to Princeton in 1779 to repair the battered college build- 
 ings, and by his presence and course in public life as a devoted sup- 
 porter of the Revolution, to eonnnunicate his own enthusiasm to 
 the students under his charge.* The fortitude, the wisdom, the 
 consummate generalship of Wa-hington.and his lion-hearted cour- 
 age having had full opportunity for display, had come to act as an 
 inspiration on his countrymen, and indicated already that he was 
 to be celebrated as the noblest figure that ever stood in the fore- 
 front of a nations historj'. The scenes of his exploits were elo- 
 qucMit t«'stimony to the young who liv»'d in daily contact with 
 them. Edward Living'^ton was repeatedly admitted to his pres- 
 ence and was kindly noticed by him. 
 
 Lafayette was vtiy tjiily in sliowing his fondness for young 
 Edward Ijivingston. jind ctnislantly dn-w him lo his side in inti- 
 mate and congenial eompanionshij). The latter had always before 
 
 Irving 'a Wasliitigton. 
 
him the instruction and fraternal counsel of his brother Robert R. 
 Livingston. The last mentioned reached the undying honor of 
 membership upon the committee which reported the Declaration 
 of Independence. He was first Secretary of State under the Rev- 
 olutionary Government of the United States, and had frequent 
 access to Washington. It was the fortune of Robert R. Living- 
 ston afterwards, as Chancellor of the State of New York, to 
 administer the oath of office to Washington on his inauguration 
 as first President of the United States. It fell to him, Monroe 
 acting towards the close as his associate, to conduct to successful 
 issue with the French Government the negotiations for the cession 
 of Louisiana to the United States. To Chancellor Livingston the 
 great distinction also belongs, of having been Coadjutor with 
 Fulton in the enterprise of navigation by steam. Who can 
 measure the influence of such a character, upon that of a younger 
 and of a very loving brother like Edward Livingston? 
 
 After graduating at Princeton, Edward Livingston began to 
 study law at Albany, in the office of John Lansing who was after- 
 wards Chancellor. Kent, Hamilton and Burr were among his 
 associates of this time. There is no tie more lasting than that 
 between fellow students Mho are in earnest about improving. 
 Kent, in particular, formed a friendship for Livingston which 
 followed him everywhere, and found expression in sincere tributes 
 to his abilities. The latter was fond of the Latin tongue 
 and cultivated familiarity with it. He made himself acquainted 
 with the Institutes and Pandects of Justinian, and thus laid 
 broad and deep the foundations of his subsequent distinction as 
 a great civilian. In 1783 he went to reside in the City of New 
 York, where he continued his legal studies, and, although he 
 mixed freely in the best society, as was quite natural in a young 
 man of his family position, at the same time engaged actively in 
 the practice of his profession, and readily reached the front rank 
 at the Bar when the contest for leadership was eager in the con- 
 spicuous field he had selected, and was carried on by an array of 
 very able rivals. He was married April 10, 1788, to Mary, 
 daughter of Charles ]\fcEvers of New York City. Three children 
 were the issue of this marriage. Charles Edward, who died in 
 childhood, Julia, whose afflicting death in New York while her 
 
lather was on his way from New Orleans to visit her, hiid him 
 prostrate, and Lewis Livin<;ston, who realizinjr a most preeocions 
 youth, died in the tiower of early manhood, blessed in his father's 
 love and honored by his friendship. 
 
 In December, 17!>4, Mr. Liviny:ston was elected to the Fourth 
 Concrress from the City of New York. He was re-elected in 17!<u 
 and in 1798. He served iii llic House of Representatives with 
 Fisher Ames, Theodore Sedgwick, William B. Giles, James Madi- 
 son and Andrew Jack.son. Between Jackson and himself there fol- 
 lowed an unl)roken friendship of numy years. He entered public 
 life as a member of the Republican party of the day. He followed, 
 althoufrh never blindly, on the pathway where the victorious ban- 
 ner of Mr. JelT'er.son was so often in the lead. On taking his seat 
 as a Representative he promptly avowed the opinion that the 
 cabinet officers of Washington were not entitled to the same 
 measure of support and of praise with the President. When the 
 House, according to the custom, was to make its answer to the 
 President's speech at the opening of Congress, Mr. Livin.'zston was 
 in favor of qualifying the address in reply, because it indulged, 
 as he thought, in commendation which did not distinguish suffi- 
 ciently between the President and his advisers. This appears to 
 have happened twice. On the second occasion, Edward Living- 
 ston and Andrew Jackson both voted against the address in the 
 form in which it was finally adopted. 
 
 Ver\' shortly after he first appeared in the House, Mr. Living- 
 ston introduced a resolution calling for the instructions of Min- 
 ister Jay in negotiating the treaty of 17i»4 with the Knig of 
 Great Britain, together with the correspondence and other docu- 
 ments relating to it, and soon after the mover amended the resolu- 
 tion so as to have it read "excepting such of the papers as any 
 existing negotiation may render it improper to disclose." The 
 occasion for offering these re.solutions was the call made on the 
 House to appropriate the sum of $!)0.000 required to carry the 
 treaty into effect. Marshall says, that the debate .soon glided into 
 an animated vehement and argumentative discussion in which all 
 the passions of parly became involved, and that it was ontin- 
 ued until March 24, 1795, when Mr. Livingston's resolution was 
 adopted by a vote of sixty-two to thirty-seven. 
 
After due consideration the President determined to decline the 
 request of the House. According to his memorable message, to 
 admit the demand would have been to establish a dangerous pre- 
 cedent. The necessit}^ for caution and secrecy was a cogent 
 reason for vesting the power to make treaties in the President by 
 and with the advice and consent of two-thirds of the senators 
 present, and every treaty so made becomes the supreme law of 
 the land. The best reason, according to the message of the 
 President, existed for believing that this construction agrees with 
 the opinions of the framers of the Constitution, and if it were 
 necessary to add to them, reference to the journals of the con- 
 vention would show that a proposition was made 'that no treaty 
 should be binding on the United States which was not ratified by 
 a law,' and that the proposition was explicitly rejected. After a 
 reference of the message to a committee, on motion of Mr. Blount, 
 of North Carolina, it was resolved by the House, 57 to 35, that 
 whenever treaties are involved on subjects committed by the Con- 
 stitution to Congress, the House has a right to deliberate on the 
 expediency of carrying them into effect, without deciding what 
 degree of obligation the treaty possesses on the Nation, so far as 
 respects these points, previous to such deliberation. 
 
 Washington declared, that he had never seen a crisis so preg- 
 nant with interesting events as that which took place on the occa- 
 sion of the public announcement of the treaty of 1794 of Jay. 
 He had, while ]\Iinister to Spain, been willing to suspend the 
 claim of the United States to the free navigation of the Missis- 
 sippi. No progress had been made down to the treaty of 1794 
 with Great Britain, in settling the vexed questions in dispute 
 with that power. The text of the treaty gave rise to insupeiable 
 objections where it prohibited the productions of Xhe British 
 "West Indies from being carried in vessels of the United States to 
 Europe; in other words forbid exportation from the United 
 States of articles which were the principal productions of the 
 islands in question. Among these was cotton, which was becom- 
 ing one of the principal staples of the Southern States. To 
 further complicate the situation an immense party in the country 
 rushed impetuously to the condemnation of the treaty.* 
 
 Marshall 's Washington. 
 
In the judcTTnent of Washington, who remained undismayed in 
 the midst of the storm which raged around him, the advantages 
 of the treaty overhahmeed its disadvantages, however great. It 
 was ultimately ratified, but on eomlition of suspending that part 
 relating to interoour>e with the West Indies. A strong memorial 
 accompanied the ratification against the order enacted of 8th 
 of June, 17f)3, of Great Britain for the seizure of provisions going 
 to French ports. Great Britain acfpiiesced, the order was 
 revoked, and the ratifications of the treaty were exchanged. 
 
 Mr. Livingston, in February, 17J)6, introduced and finally 
 secured the passage of the Act of May 28, 1790, for the protection 
 of American seamen, who had been impressed into the service of 
 foreign powers, but especially into that of Great Britain. He 
 earned national reputation from his opposition to the Alien and 
 Sedition Laws. The Alien Act of June 25, 1798, gave the Presi- 
 dent i)ower to order all such aliens as he deemed dangerous or had 
 reasonable grounds to suspect of treasonable intentions to leave 
 the United States. The second Alien Act of July 6, authorized the 
 President on the breaking out of war, to enforce the apprehension, 
 restraint and removal of alien enemies. The courts were empow- 
 ered to enforce such removal or exact security for good conduct. 
 The Sedition Act of July 14, 179S. made it a high misdemeanor 
 to combine to oppose measures of the United States or to traduce 
 or defame the Legislature or the President by declarations tend- 
 ing to criminate the motives of either. 
 
 Mr. Ijivingston uidiesitatingly i)ronounced these Acts uncon- 
 stitutional. He declared that the people ought not to siibiuit to 
 them. They would deserve the chains which the«e measures were 
 forging for them, if they did not resist. One of the first re-^ults 
 of such laws, as lie insisted, would be disaflTcvtion among the 
 States, and opposition among the people to the government, 
 tinnults, violations, and a recurrence to first revolutionary prin- 
 ciples. If the laws in ipiestion were submitted to. the conse- 
 quences would be worse. After sueh manifest violation of the 
 principles of our Constitution the form woidd not long be .sacred; 
 presently every vestige of it would be lost and swallowed up in the 
 gulf of despotism. The syst«'m of espionage thus established, the 
 country would swarm with informers, s])ies, delators— the com- 
 
panion whom you must trust, the friend in whom you must eon- 
 fide, the domestic who waits in your chamber, were all tempted to 
 betray your imprudence and guardless folly, to misrepresent your 
 words, to convey them, distorted by calumny, to the tribunal 
 where, as he said. Jealousy would preside, where Fear would 
 officiate as accuser, and Avhere Suspicion would be the only evi- 
 dence that is heard. 
 
 The ease of Thomas Nash, alias Jonathan Robbins, was brought 
 before the Sixth Congress, A. D. 1799. Mr. Livingston offered a 
 series of resolutions relative to this case, and spoke upon it. 
 Nash having committed a murder on a British frigate on the high 
 seas, and having escaped to this country, the British government 
 demanded his extradition under the 27th section of Jay's Treaty. 
 President Adams advised and requested the Judge to deliver up 
 the prisoner. The resolutions of Mr. Livingston were to the 
 effect, that the questions involved were matters exclusively of 
 judicial inquiry, and that the interference of the President was 
 dangerous to the independence of the judiciary. 
 
 These resolutions were the occasion for the celebrated speech 
 (on the other side of the case) by John Marshall. Starting with 
 the proposition that an off'ence committed on board of a public 
 ship of war, on the high seas, is committed within the jurisdiction 
 of the nation to whom the .ship belongs, he maintained that it was 
 the duty of the Executive Department of the Government to see 
 to the surrender of the prisoner in conformity with the treaty of 
 1794. In accordance with this view, the resolutions of Mr. Liv 
 ingston were defeated by a vote of thirty-five to sixty-one. Nash 
 was given up, and upon being tried in England, executed there. 
 The speech of Marshall raised him at once to the leadership of the 
 Administration party in the House, and by its extraordinary 
 power attained for him the highest reputation throughout the 
 country. 
 
 In the same Congress, Mr. Livingston moved for a committee 
 to enquire and report whether anj^ alterations could be made 
 in the penal laAvs of the United States, by substituting milder 
 punishments for certain crimes for which infamous and capital 
 punishments were then inflicted. The committee was appointed 
 and he was made chairman. Shortly afterwards he offered a 
 
10 
 
 spcond resolution, requesting the President to obtain for the 
 information of Conjrress, detailed statements respecting the trials 
 and convictions which had taken place under existing laws, and 
 a year later Mr. Livingston moved for and obtained the appoint- 
 ment of a committee, of which he was made chairman, to report 
 whether any and what alterations were necessary in the penal 
 laws of the United States, and to report by bill or otherwise. 
 
 Mr. Livingston retired from Congress with the contest for the 
 Presidency between Jefferson and Burr. There wero thirty-rivti 
 ballots without any election. On the thirty-sixth, Mr Jefferson 
 was declared to have been elected President of the United States. 
 Mr. Livingston adhered to him steadily throughout the balloting. 
 The vote of New York stood six for Jefferson, four for Burr. The 
 change of one vote would have made a tie and have lost Jefferson 
 the vote of the State, if not the election. The fact is tliat Liv- 
 ingston not only declined to give Burr his support in any event, 
 but kept up throughout the great struggle relations of the most 
 confidential character with Mr. Jefferson. 
 
 March 13, 1801, Mrs. Livingston died. There is a record of the 
 event made by Mr. Livingston. It had pleased heaven to dissolve 
 a union which for thirteen years had been blessed with its own 
 harmony — with uninterrupted felicity rarely to be met with. 
 Formed by mutual inclination in the spring of life, it was 
 cemented by mutual esteem in its progress and was terminated by 
 a stroke as sudden as it was afflictive. Three or four days later 
 Mr. Livingston was appointed United States Attorne}' for the 
 District of New York, and on the 24th day of August en.suing, 
 upon the removal from office of Richard Varick. he wa; instalNvl 
 Mayor of the City of New York. lie was now thirty-seven years 
 old. 
 
 The Mayor at the time, in addition to his multifariou.s duties 
 aa Chief Magistrate, was required to preside over a high court 
 exercising botli criminal and civil jurisdiction. lie sat on the 
 trial of capital cases. It was his part also to preside over th^' 
 Common Council, and according to the custom of the day, to 
 receive distinguished strangers. Mr. Living.ston's qualifications 
 for the place were very eminent, and he applied himself to the 
 performance of the functions of office with utmost diligence. Ili^; 
 
11 
 
 charges to juries were received Avith great public favor. He 
 reformed the rules and practice of the court in civil actions, and 
 published a volume of reports entitled Judicial Opinions, deliv- 
 ered in the Mayor's Court of the City of New York in the year 
 1802. He proposed to the Mechanics' Society to found jointly 
 with the city an establishment for the employment of strangers, 
 the first month of their arrival, secondly of citizens who from 
 sickness and casualty were out of work, third of widows and 
 children incapable of labor, fourth of discharged convicts. The 
 benevolence of his nature made him dwell with enthusiasm upon 
 the results, in the suppression of mendicity, the prevention of 
 crime, and the reformation of criminals, for which he hoped, if 
 the measures urged by him were adopted. 
 
 The summer of 1803 brought with it yellow' fever to New York. 
 The people were panic-stricken, but the Mayor, undismayed, 
 remained steadfast at his post of duty. He made a list of the 
 sick, and visited them daily at their homes and in the hospitals, 
 and ascertained and supplied their M^ants. He traversed the town 
 day and night. He went everywhere, and stimulated to duty 
 priests, doctors and nurses, and the ^^atchmen on guard. At last 
 he succumbed to the pestilence, contracted in his visits of conso- 
 lation and mercy to sufferers among the poor. Recovering after 
 a short but violent attack of fever, he found himself the beloved 
 object of public gratitude. 
 
 The greatest misfortune of his life— and he met with some 
 cruel ones — now befell ]\Ir. Livingston. While the yellow fever 
 was raging, in the month of August, his attention w^ called to 
 his accounts as United States Attorney (charged at that time 
 with the collection of funds recovered in litigation for the govern- 
 ment) as showing that he had become indebted to the govern- 
 ment in a considerable amount. George Bancroft, historian of 
 the United States, relates that upon his recovery from illness, 
 he found that he had been defrauded by a clerk, and that he was 
 a debtor to the government beyond his means of immediate pay- 
 ment. Without a word of complaint, crimination or excuse, he at 
 once devoted his inheritance, his acquisitions, the fruit of his pro- 
 fessional industry, to the discharge of his obligation to the gov- 
 ernment, and for near a score of years gave himself no rest, till 
 
IL' 
 
 he had paid it, principal and interest, without defalcation. "With- 
 out waiting for an adjustment of his accounts, he proceeded to 
 confess jud^rinent in favor of the United States, conveyed his 
 property to a trustee for sale and an application of the proceeds 
 to the payment of his debt, and resi^nied botli his offices. Leaving 
 his children in the care of his brothei-. John K. Livingston, and 
 being provided with only one hundred dollai-s, and a letter of 
 credit for one thousand more, he embarked during the last week 
 in December, two months after withdrawing from the Mayoralty 
 of New York, as a pa.sseuger on board a vessel bound for New 
 Orleans. 
 
 Governor Clinton wrote to him to express his sincere regrets, as 
 well from considerations of a personal as of a public nature, for 
 his resignation of the highly important office he held, and which 
 he was so eminently (jualified to fill. A conimittee of the Common 
 Council sent him an address. They said they would merit the 
 reproaches of their fellow-citizens and fail in duty to themselves 
 if they passed over in silence, the affecting moment which termi- 
 nated his administration as fir«t magistrate of the City of New 
 York. They praised the learning and discernment of his judicial 
 decisions — his vigilance, activity and zeal as an executive officer, 
 his impartiality and independence. They expressed admiration 
 for the zeal and philanthropy with which amid.st the affliction and 
 dismay of the epidemic he had sought out and relieved distress, 
 and sacrificed his personal safety to that of the suffering poor. 
 They declared that they would be destitute of the feelings of men 
 if they could part with him without regret. They thanked heaven 
 1 jr having spared his life. They said that he had erected in the 
 I rcasts of the virtuous a monuiiuMit which calumny could not 
 .ully nor time efface. Tiny added that their attachment to his 
 person would endure with tlie recollection of his virtues, and that 
 lu' would take with him tiieir lasting esteem, and their pi-ayers for 
 his pn)sperity and hapi)in(»s.s. 
 
 I l)ring my narrative to a close in the pn'sent iiumediate 
 connection, by referring to the statement of Mr. Livingston him- 
 self some time before he was enabled to discharge his debt to the 
 government, and made in the celebrated Batture controversy in 
 which he became involved with Mr. Jefferson. Mr. Livingston 
 said : 
 
13 
 
 " It is time that I should speak. Silence now would be cruelty 
 'to my children, injustice to my creditors, treachery to my own 
 'fame. The consciousness of a serious imprudence, which cre- 
 'ated the debt I owe the public, I confess it with humility and 
 ' regret, has rendered me perhaps too desirous of avoiding public 
 'observation— an imprudence which, if nothing can excu.se, may 
 'at least be accounted for by the confidence I placed in an agent 
 'who received and appropriated 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 pouring into the 
 'public treasury the fruits of my labor, and above all by the 
 'humiliation of this public avowal." 
 
 Mr. Livingston on arriving in New Orleans in December, 1804, 
 found a town of 8056 inhabitants, including 1335 free p.Tsons of 
 color and 2773 slaves. He rose immediately to the leadership r.t 
 the bar. His life passed now into another period of American his- 
 tory, which may be designated as that in which Republican Rep- 
 resentative Institutions showed themselves capable of indefinite 
 expansion, and the State of Louisiana, under the protection of 
 the Constitution and laws of the United States, was founded and 
 developed. 
 
 By the treaty of Ildefonso of October 1, 1800, Spain entered 
 into a conditional agreement to cede the colony of Louisiana to 
 France, and the retrocession took place by treaty March 21, 1801. 
 The French made preparations to take possession of the colony, 
 but an army of twenty thousand men designed for the purpose 
 were blockaded in the ports of Holland by an English squadron. 
 The American government took just advantage of the condition 
 of afi^airs to urge upon France the expediency of selling the 
 province. There is an authoritative statement by Edward Living- 
 ston relative to the negotiations. Robert R. Livingston, the Ameri- 
 can Minister to France, enjoyed an established reputation for 
 honor and integrity, and celebrity as a man of literature and 
 science. He foresaw the advantage that must result to his own 
 
14 
 
 counfry from the acriuisitirm of Ijouisiana, ami felt honest pride 
 in being instrumental in promoting it. He paved the way for this 
 important purchase by official notes, indirect communications, and 
 printed essays; and leaving the beaten track of official notes to 
 ministers, resolved on a bold and unusual measure, and addressed 
 Napoleon himself. The little value of Louisiana to France was 
 insisted on, the question that would arise with the United States 
 relative to the navigation of the ^Mississippi, and the right of 
 deposit secured to us by Spain as well as the certainty of con- 
 quest if the war should be renewed with Great Britain. The 
 result proved a great success. Mr. ^lonroe arrived in Paris in 
 time to co-operate with Robert R. Living.ston in fixing the price, 
 and by the treaty concluded at Paris on the'i6th of April, ]8(»r{, 
 the First Consul ceded in the name of the French Republic, for 
 the sum of $'15,000,000, for ever and in full sovereignty, the 
 province of Louisiana to the United States. The possession of the 
 French under the treaty lasted only from November 30 to Decem- 
 ber 20, 1803. On the date last named. Judge Martin's history 
 relates, that the tri-colored flag of France was displayed at sunrise 
 on the public square which faces this building in New Orleans for 
 the last time. It made room, in token of the transfer, for the 
 Stars and Stripes, under repeated peals of artillerA^ and musketry. 
 
 The territory thus acquired included at least Louisiana, Arkan- 
 sas, Missouri, Iowa, the Indian Territory-. Oklahoma. Nebraska, 
 North Dakota, South Dakota, the greater portion of Minnesota, 
 Montana, Colorado. Wyoming and Kansas. The province of 
 Louisiana extended to the Rocky ^lountains. Florida was ac- 
 quired from Spain in ISlD. W(>st Florida had been occupied by 
 the United States, as part of the Louisiana purchase, and also on 
 the principle of self-preservation. The Oregon territory (occu- 
 pied by the T'nited States and claimed as part of the Louisiana 
 purchase, and later (1818 — 184r)) held in joint occupancy with 
 Great Britain) was afterwards (1846), by treaty with Great 
 Britain, recognized to belong to the T'nited States, and included 
 the States of Oregon. "Washington and Idaho. 
 
 The territory here dcsigiuited includes a great part of the 
 Granary of the World, feeding much of the United States and 
 supplying the deficiencies of Europe and Asia. From reference 
 
I 
 
 I 
 
 I 
 
 15 
 
 to statistic;?, the development of wealth and power which has 
 resulted is sai'd to be without parallel in the annals of the human 
 race. In 1790 the population of the United States is set down 
 at 3,819,876. In 1900 the population of the Louisiana pur- 
 chase amounted to 14,708,616. The production of wheat that year 
 was 263,560,935 bushels. The production of corn was 1,011,932,967 
 bushels. The production of oats was 70,367,489 bushels. Farm 
 animals were valued at $825,000,000. Colorado alone has pro- 
 duced since her mines have be^un to be worked $16,000,000 
 copper, $308,000,000 gold, $372,000,000 silver, $116,000,000 lead. 
 Montana in four metals produced in less than forty years more 
 than $1,000,000,000.* The Bureau of Statistics of the Govern- 
 ment estimates that the Louisiana purchase territory is about the 
 size of Great Britain and Ireland, Holland, Belgium, Germany, 
 France and Spain, which countries have an aggregate population 
 of 200,000,000. 
 
 Only a very imperfect conception of the true value of the 
 Louisiana territory is to be formed from figures even such as are 
 here given. When the bold genius and character of the people 
 who inhabit this vast region is taken into consideration, and the 
 effect public education is destined, in the cour.se of time, to have 
 upon them— their probable growth not only in numbers, but in 
 morality and religion, and in obedience to the cause of law and 
 order — in industry and invention— in commerce and internal im- 
 provements—in letters and science— in devotion to American in- 
 stitutions, and in enlightened love of country— no one is to be 
 found confident enough of prophetic power to foretell their 
 influence upon the Hej^ublic. There is not at the present day, 
 one hundred years after the purchase, treasure enough among 
 the nations of the earth to buy this territory, nor could the com- 
 bined armies and navies of the world wrest it by conquest from 
 the United States ! 
 
 Mr. Livingston, when he came to New Orleans, found the Civil 
 Law of Spain in force there as derived from the Roman jurispru- 
 dence. The sweetness of his temper, and his very simple and 
 unaffected address, made it easy for him to extend his acquaint- 
 ance, and, his reputation for talents spreading rapidly, he ac- 
 
 'The World's Work, May, 1903. 
 
l(i 
 
 quired from the befrinnin*? a lar«;e practice. He \va> an accom- 
 plished liniruist in French. Spanish and TJerman. 
 
 In November foliowinfr his arrival, he was mainly instrumental 
 in obtaininj; a decision by wliich the Roman Civil Law was 
 retained as tlie foundation of the local jurisprudence. The or^janic 
 law provided for the administration of justice according to the 
 Common Laic, such being: the provision of the ordinance of 1787 
 of Nathan Dane for the jLrovernment of the northwest territory. 
 The le^'islation of Congress establishing' a {rovernment for the 
 territory of Orleans, adopted the provision of the ordinance of 1787 
 by reference. The Act of Con^'ress declared that the inhabitants 
 of the territory shall always be entitled to the benefits of the writ 
 of habeas corpus, and of the trial ])y jury, but also provided that 
 the law in force in the territory and not inconsistent with its pro- 
 visions, should continue in force until modified or repealed by the 
 Lejrislature. 
 
 The first attem]>t to ol)tain a decision by which the Common 
 Law of Enirland should l)e i>ronounced to be the law of Louisiana, 
 was made when Judfie John B. Prevost was Judj;e of the Superior 
 Court of the territory. An array of counsel, En«rlish, Scotch and 
 Irish, contended that the Act of Confrress in question provided 
 tot idem verbis for the Common Law of En^dand. They had no 
 other frround to stand upon. Edward Livinirston, Louis Moreau 
 Lislet, Pierre Derbi<rny and Etienne ]\Iazur(»au appeared on the 
 other side. ^Ir. Maznreau te-tifies that the attack was a formid- 
 able one. The adversary side did tbfir utmost. But when Livinp- 
 "ston spoke he demolished their argument, and it erundiled to its 
 base. The oi)in!on of the court swept away the d«'bris and dis- 
 persed them. The court held that the law in force Ix'in^ Roman 
 and S[)anish and French, it results that the term Common Late 
 when applied to the territory must be e(|uivalent to the Common 
 Law of that Land, or the Civil Law of the Land. 
 
 ^lazureau wrote to ^Ir. Livin<rston the day aftfr In- beard the 
 latter speak. He confrratulated him on the skill and rare oio- 
 (juenee he bad displayed. lie ebaractcrized his ('fl'oi-t as a ])ro- 
 found discourse t"roiii lieirimiin-x to end. and he declared that in 
 the peroration iiivintrston had been ^reat. snblim(\ astoni-ihiufr. 
 "Happy," (he e.xelaimed) "are the people whose interests are 
 defended by a man like you!" 
 
17 
 
 The second attempt in favor of the Common Law of England 
 was made after the resignation of Judge Prevost and after Judge 
 Sprigg had gone away, and Judge Matthews, in obedience to 
 existing law, sat alone. The second effort would not have been 
 made, in all probabilitj', if the decision given in the first case as 
 just related, had been copied upon the minutes of the court. This 
 surprising omission, according to Mr. Mazureau, was the sole 
 cause for the fresh assault made by the enemies of the law of 
 Louisiana upon the jurisprudence of the country. It failed, how- 
 ever, signally. It proved as little creditable to those who made it, 
 and as little profitable as their original endeavor. 
 
 The observation of Chief Justice Eustis, in the Succession of 
 Franklin, 7 Ann. 395, is one well deserving of being recalled. The 
 Chief Justice says, that the most eminent members of the bar 
 conversant with the Common Law of England did not favor its 
 introduction into Louisiana as a system. The Supreme Court, in 
 Reynolds vs. Swain, 13 La. E. 198, treating Article 3251 of the 
 Civil Code of 1825, and the famous sweeping clause, Section 25 
 of Article 83 of 1828, decided, that the repeal of the Roman. 
 Spanish and French Civil Laws in the Article cited, and in the 
 repealing clause referred to of the Act of 1828, only embraced the 
 positive, written or statute laws of those nations and of this State, 
 such as were introductory of a new rule, and did not abrogate the 
 established principles of law, settled by the decisions of courts ol 
 justice. The repeal spoken of in the Code, and the Act of lb28, 
 could not, according to the court, extend beyond the laws which 
 the Legislature itself had enacted ; for it is these alone whicV it 
 could repeal. 
 
 The course of Mr. Livingston in leading the way for securing 
 to the people of Louisiana the jurisprudence to which they had 
 been accustomed, followed the principles of public law^ and the 
 practice of nations. It contributed powerfully to make the past 
 history of the people fit harmoniously with the future, into which 
 events were bearing them, and by assuring them the institutions to 
 which they were accustomed, gave them proof of the justice and 
 liberality of American policy. It is not difficult to see v.hat advan- 
 tages the State of Louisiana inherited at once in the possession of 
 so perfect a system as that of the Roman Law. The study of this 
 
18 
 
 {ZToat hraiu'li of juris|)iud"uc-e in our coiiutry derive! a stron;? im- 
 pulse from the admission into the Union of a new State, the basis 
 of whose jurisprudenee was the Civil Law. Diseussions in cases of 
 importance in the Supreme Court of Louisiana, in the Supreme 
 Court of the I'nited States, and in juristical commentary, shed a 
 flood of lifzht upon le«ral science. In the end, the cause of general 
 learning itself was advanced. 
 
 The second year of ^Ir. Livingston's residence in New Orlf^ans 
 he recommended the simplification of the Practice, and prepared 
 a new system of legal procedure, which was adopted April 10, 
 1805. It substituted a simple system for the prevailing ore. It 
 was based on the plan of requiring each party to state in intelli- 
 gible language the cause of complaint and the grounds of de- 
 fence. His Act included twenty-two .sections. Writing about it 
 twenty-five years later to Jeremy Bentham, ]\Ir. Livingston 
 claimed, although from its novelty, many questions might arise 
 under it before the court and suitors would become accustomed 
 to its provisions, that the Louisiana law bqoks from 1808 to 1823 
 contained fewer cases depending upon disputed points of prac- 
 tice, than occurred in the single year of 1808 m New York, where 
 they i)roceeded according to the English law.^ He told a young 
 gentleman newly arrived from a Connnon Law State, who ex- 
 pressed much solicitude concerning the time it would take him to 
 learn the practice in Louisiana, and who was engaged to dim; 
 with him at four o'clock the next day. that he thought he could 
 initiate him in all the mysteries of practice before tlu-y .sat down 
 to dinner. It is und<Miiable that Mr. Livingston's Act gave great 
 satisfaction, and 1 find it spoken of in a recent pajJiM* of the 
 American Har Association in terms of high proft^ssioiiai piaise. 
 
 June 3, 180."). .Mr. Livingston was married at tlic Archbishopric 
 in New Orleans to Madame Ijouise Moreau de Lassy, (born 
 DWvezac de Cast era,*) a beautiful and accomplished lady of rar(> 
 mental eiidownuMits and of many virtues. She was descended 
 from a distinguish<^d French family that bad settled in the 
 island of St. Homingo, and tied from there to escape the mas.sacre 
 which attended the uprising of slaves in the revolution. Once 
 more Mr. Livingston had a home, but, although he eti joyed domes- 
 tic felicity again. In- was beset by dantrei-s and difllcidties. 
 
 •The American branch of the tamily Hpolt and called their name Davexac. 
 
19 
 
 General James Wilkinson was commander-in-chief of the Army 
 of the United States. He had recently returned to New Orleans 
 from a visit to Washington. Mr. Livingston believed himself to 
 be on good terms with him. The General caused the arrest of a 
 certain Dr. BoUman, and of two other persons for alleged trea- 
 sonable practices connected with their asserted intimate associa- 
 tion with Burr. Mr. Alexander, a member of the New Orleans 
 bar, having made application on behalf of these persons for a 
 writ of habeas corpus, retained Mr. Livingston as associate coun- 
 sel. General Wilkinson appeared in the Superior Court of the 
 territory. Judge George Matthews presiding, to show cause why 
 the prisoners had been arrested ; and being citizens, under the 
 protection of the laws, by what authority their persons were 
 detained. The General came into court in the full uniform of his 
 high rank, attended by a brilliant staff armed and equipped like 
 himself. He made his statement, asked that Alexander be sent for 
 and placed under arrest, and then proceeded to denounce Living- 
 ston by name. Mr. Mazureau was an eye-witness of' the scene. I 
 refer to his statement of it. General Wilkinson, in reply to the 
 mandate of the court, made an address, in which his title of 
 General-in-Chief of this military division was frequently repeated 
 Avith significant emphasis. His speech concluded with the avowal 
 that the accused had beep arrested solely by the order of the 
 General, and that he assumed the responsibility for their deten- 
 tion. The court having replied, with judicial calmness and dig- 
 nity, that such a return to the writ was quite insufficient to sat- 
 isfy the requirements of the law, the respondent, to complete his 
 arbitrarj^ conduct, insisted upon his clearly indefensible position 
 with disdainful defiance. Accordingly the court soon resounded 
 with his menace and invective, directed not against the Judges 
 but against the counsel who had presumed to invoke in behalf of 
 the prisoners the protecting writ of the law. In order to make 
 perfect the triumph of the sM^or.d over the law, he added, in a 
 burst of passion, that he would deal with counsel for the prisoners, 
 and whomsoever dared to support them, without regard to place 
 or to the position they might hold in the country. 
 
 Mazureau 's account is that Edward Livingston, thus attacked, 
 and with such temerity in the sanctuary of justice, displayed in 
 
20 
 
 their full vipror as well as in all their splendor, liis talents of ora- 
 tory. Cen. Wilkinson, confident of triumph, had no sooner paused 
 than Livinjrston in turn rose with the simplicity which was so 
 channin»r a feature of his address, and after modestly thanking 
 the Jud^'cs for the symjjathy they seemed prepared to extend to 
 his situation, he proceeded to improvise one of those discourses 
 worthy of the Roman consul when he confounded Catiline, — 
 discourses which takiiif; possession of the listeners fill thrm with 
 overpowering emotions— electrify, subdue and transj)ort them, 
 falling upon them like a thunderbolt, and scarcely leaving them 
 the faculty to discern, that it is only a man who si)eaks and not a 
 divinity who fulniines over the scene. Justice was for the time 
 being baffled. Tlie pri.soners were not produced, because, as was 
 stated, they had l)een removed from the jurisdiction of the court. 
 They were carried to Wasliington. where nothing was proved 
 against them. Alexander was seized and hurried off with the 
 rest, but the triumph of Livingston was in the end complete. He 
 had defied the military power; and from that time arrests by 
 military orders ceased and the empire of law was restored. 
 
 When at a later time Mr. Livingston left New Orleans to take 
 service in high public station under the government of the United 
 States. Mr. IMaznreau succeeded to the leadership of the New 
 Orleans bar. He was a man of truly great abilities. A native of 
 France, he liad tied the despotism of the greatest captain of 
 modern times, in search of Civil Tiilierty. which he declared to be 
 the idol of his heart. In the wielding of satirical and sarcastic 
 invective he has had no equal in the liistory of the Bar of the State. 
 His address in f|uestiori is upon the life and character of (Jeorge 
 ^Fatthews. Tt contains, in addition to a tribute to the virtues and 
 learning of Judge Matthews, as an excell(>nt magistrate, a care- 
 fully considered account of the character of the population of 
 Louisiana and (»f the ])eginning of its civilization, with an exami- 
 nation into the institutions of the territory, and of its early juris- 
 prudence. For masterj' of difficult topics, and for lucid exposi- 
 tion of them — for knowledge of law and practice — for attachment 
 to free principles of government — for elevation of sentiment, and 
 for true dignity and elorpience, I do not hesitate to claim that it 
 will bear comparison with the best efforts of ancient or of modern 
 oratory. 
 
21 
 
 Not long after settling- in New Orleans, Mr. Livingston became 
 involved in the celebrated Batture controversy, the principal 
 question in which was, whether or not the owner of a riparian 
 estate front to the Mississippi river, acquires the batture which 
 may thereafter arise before the estate, or in other words whether 
 or not the batture so situated is subject to private ownership ? 
 
 The faubourg St. Mary or Ste. INIarie, from which. the Batture 
 Ste. Marie gets its name, extended from Common to Delord 
 streets above, and embraced the front and public space between 
 New Levee street and the Mississippi river. The Jesuits, early 
 in the eighteenth century, became possessed of some lands on the 
 Mississippi adjacent to New Orleans. The order of Jesuits was 
 abolished by France in 1763 just before the cession of the prov- 
 ince of Orleans to Spain, and the property of the order was for- 
 feited. Under an edict of confiscation the land referred to was 
 sold and came into the possession of Bertrand Gravier, who 
 divided it into suburban lots and conveyed it to several pur- 
 chasers. In 1805, Mr. Livingston, as counsel for Jean Gravier in 
 his capacity of heir of Bertrand Gravier, instituted an action 
 against the City of New Orleans, to be quieted in the exclusive 
 possession of the alluvial ground in front of the suburb St. Mary 
 and commonly called the Batture St. Marie, and to prevent the 
 inhabitants of the city from trespassing thereon. That suit was 
 terminated by a judgment recognizing the right of John Gravier, 
 and declaring perpetual the injunction ■ he had obtained. But 
 the case gave rise to a great deal of excitement. Notwithstanding 
 the decision of the highest tribunal of the country in favor of 
 Gravier, the inhabitants found themselves deprived of what they 
 had considered their rights to procure sand and earth on the 
 batture for building, filling lots and other uses. They continued, 
 notwithstanding the adverse decision, to assert a right of enjoying 
 the batture. 
 
 Mr. Livingston having afterwards purchased a portion of the 
 property for himself from Gravier, entered upon it and began 
 to improve it. But his endeavors were thwarted. The populace 
 rose against him. They dispersed the laborers engaged on the 
 work. They called on Governor Claiborne to use military force. 
 The Governor, succeeding in quieting the mob for a season, 
 
22 
 
 referred the matter to Washintrton, representing that in his opin- 
 ion the Batture St. Marie btlonged to the United States as 
 Sovereign over the Soil. President Jefferson took up the sub- 
 ject. It was discussed in Cabinet. The Attorney General giving 
 an opinion in favor of the United States, the ^Marshal of the DL«- 
 trict of Orleans was instructed by a letter of the Secretary of 
 State to remove immediately by the civil power from the Batture 
 St. ATarie any persons who had taken possession since the 3rd of 
 March. Mr. Livingston having applied for and obtained an 
 injunction from a Judge of the Superior Court, and served the 
 same on the Marshal, the latter disregarded the writ of the court 
 and dispossessed hiui. lie then brought an action against the 
 Marshal in the Federal Court, to recover damages and to be re- 
 instated in possession, and another against Mr. Jefferson in the 
 District of his residence. 
 
 The limits which belong to the present occasion forbid that I 
 should follow the litigation in the Batture case in detail. Enough 
 has been said to state the original position of the parties. Mr. 
 Livingston had to contend against the prejudices of the communi- 
 ty ; against the efforts of the territorial government, and the op 
 pressive action of the President of the United States. His fortune 
 was secrificed in the contest, his businesB lo.st, and his life repeat- 
 edly exposed to imminent danger from popidar re.-entment. He 
 complained to the Legislature that the Judges would not li.sten to 
 his arguincnts and the authorities, but he complained in vain. He 
 died a very poor man. Under a compromise authorized by the 
 Legislature his family many years after his death, were enabled, 
 at the end of a litigation so fierce that it is without parallel in the 
 history of the State, to realize a comparatively limited propor- 
 tion of the proceeds resulting from sales of the batture property 
 where his real interest-s were very large. Mr. Jeffer- 
 son, forced to answer the ai)peal to tlu; public opinion of 
 the country which I\Ir. Livingston had made in a published 
 argument of extraordinary learning and excellence, fell van- 
 quished before the righteous demand of his adversary for justice, 
 and before the superiority of his presentation of his great cause. 
 
 In the case of Municipality No. 2 vs. Orleans Cotton Press, 18 
 Ijouisiana Reports Kif). where the argtnnent of Mr. Livingston 
 
23. 
 
 received critical attention in the discussions of eminent counsel 
 — Etienne Mazureau and Levi Pierce for the Municipality; Isaac 
 T. Preston, Christian Roselius, Randell Hunt, George Eustis and 
 Pierre Soule for defendants — scholars as well as jurists, qualified 
 in every way to take up and carry on a great forensic debate— 
 the result was a signal victory in favor of the right of private 
 ownership in the Batture by way of accession. In the case cited, 
 Judge BuUard, giving the • opinion of the majority, said : 
 The right to future alluvial formation is a vested . right. It 
 is inherent in the property itself, and forms an essential attribute 
 of it, resulting from the Natural Law, in consequence of the 
 local situation of the lands. The learned Judge observed that if 
 the Act of 1805, which incorporated and defined the limits of the 
 City of New Orleans, had declared in explicit terms, that tracts 
 of land fronting the river should no longer be entitled to any 
 alluvion which might be formed, but that the same should there- 
 after accrue to the benefit of the city, the Act would not orily 
 have been unconstitutional, ,hut one of clear spoliation. Speaking 
 of the Faubourg St^. Marie, Judge Bullard added it had long 
 since been settled that the alluvion belonged to the front propri- 
 etors, and had been subsequently dedicated to public use by con- 
 tract between them and the city. 
 
 Solitary among the Judges the venerable senior Judge of the 
 Supreme Court who presided over its deliberations. Judge Mar- 
 tin, dissented. I think it appropriate to remind those who have 
 been good enough to listen, how Mr. Livingston believed himself 
 so much aggrieved by the insensibility or want of power of the 
 Judge to be moved or afifected by his arguments, that he had tried 
 to have him impeached. The two personages were so far apart 
 that Mr. Livingston appeared with reluctance in the Supreme 
 Court. In this condition of affairs, no one will accuse the Judge 
 of having thought with partiality of the talents of the advocate. 
 I am able to add, on the authority of Doctor Thomas Hunt, 
 by whom it was my cherished privilege to be instructed, on 
 local as well as on general topics, that Judge ]\Iartin on being 
 asked, in presence of the conditions stated, "Who is the first 
 lawyer in Louisiana?" answered immediately, "Livingston." 
 ''Who next?" continued his interrogator. "Livingston," was 
 
24 
 
 the Judge's ready reply, "is so easily first, that I can name no 
 one as second to him!'' 
 
 The bustle of Mr. Livinjrston's professional practice kept him 
 verj' busy. If he had yielded to retrospection he would have been 
 forever lost, lie had entertained great hopes of extricating him- 
 self from pecuniary embarrassments by success in his adventure 
 in tlif Hatture property. The luilooked-for ()])p(>sition he met 
 with slimidated his exertions, but he could not shorten the tedious 
 course of the complicated litigation which had develoi)ed itself, 
 and the War of 1812 between the United States and (Jreat Britain 
 found his personal interests still involved in the courts. 
 
 Circumstances and his own patriotic ardor combined to give 
 him the lead in going to the assi<t.;uice of General Jackson. He 
 had served, as has been seen, with the latter in Congress and 
 agreed with him on matters of public policy. Anticipating the 
 course of events and the approaching danger to New Orleans, 
 Mr. Livingston bad been sonic time in correspondence with the 
 General at Mobile, and furnished him with maps and information 
 of service to a military officer. As early as the month of Septem- 
 ber, 1814. he presided at a meeting of citizens, at which resolu- 
 tions ofTered by himself were adopted, connnitting the people to 
 risk life and fortune in defence of the country. lie delivered a 
 stirring speech at tlic meeting, and a coiinnittee having been 
 appointed to eo-opefale witli tbe civil and military autborities in 
 suggesting means of defence in calling fortb the energies of the 
 country, to repel invasion and to preserve domestic tranipiility, 
 he was nuide chairman. 
 
 General Jackson, arriving in New Orleans December 2nd. he 
 was among the first to welcome him. He translated the speech in 
 rpply made by Jackson, so that instead of being lo.st. it reached 
 the ears of tho.se who c»>uld not understand English in tlu' inspir- 
 ing words of tbeir own langiuige. The listeners, electrified, were 
 mllied to the (ieneral's suj)port. Mr. Tjiviugston and himself 
 were thenceforward inseparable. The fornu-r became the Gen- 
 eral's confidential adviser, his military .s»'cretary. his spokesman 
 and interpreter.* lie wrote an ehunient proclamation for the 
 General, which was published December ir)th, and a <'lear neces- 
 sity being found to exi.st for the declaration of nuirtial law, it 
 
 " Irving 's Washington. 
 
25 
 
 was, with Livingston 's advice, resorted to. December 23rd, he re- 
 paired on board the Caroline and explained to Commodore Pat- 
 terson Jackson's plan of battle. In the night attack, which fol- 
 lowed, he and his brother-in-law, ]\Iajor D'Avezac were thanked 
 in general orders for calm and deliberate courage. D 'AVezac was 
 a wit and a scholar, and a student of rare acquirements in the de- 
 partment of history. I have it on the relation of Christian Rose- 
 lius, who studied law in his office, that he was a more eloquent 
 criminal lawyer than Pierre Soule. Lewis Livingston, then a 
 boy-captain on the General's staff, shared these honors with 
 his father and uncle. The service was dangerous, but glorious. 
 When Jackson returned in triumph from his great victory over 
 the British, of January 8, 1815, Mr. Livingston, by his direction, 
 wrote the General Orders which were read at the head of each 
 corps composing the army, and which announced in words glow- 
 ing with love of country, the signal success which, by Heaven's 
 favor, had crowned the American arms. 
 
 February 4th, in conjunction with Captain White and K. D. 
 Shepherd, Esq., he was despatched to meet Admiral Cochrane and 
 General Lambert, to eft'ect the exchange of prisoners. He was 
 present at the surrender of Fort Bowyer, on the 12th. On the 
 13th, official information was received of the signing of the 
 treaty of Ghent. He returned to New Orleans January 10th. 
 Confirmation of the execution of the treaty was received by 
 General Jackson ]\Iarch 15th, ensuing. The City of New Orleans 
 had been kept under martial law during the twenty-two days 
 which elapsed between the return just stated of Mr. Livingston, 
 and the arrival of the official news of the treat3^ Judge Hall, U. S. 
 District Judge, having issued a writ of habeas corpus for the 
 protection of Mr. Louallier, who had been arrested by order of 
 General Jackson for the publication of a communication to a city 
 paper, adversely criticising the General's course, the latter had 
 arrested the Judge himself, and banished him. He now resumed 
 his seat on the bench, and under Mr. Livingston's advice, General 
 Jackson appeared and submitted himself to the authority of the 
 Court and was fined. Hall M'as an upright Judge, and. a stranger 
 to fear, with whom personal considerations had no weight. 
 
 At the close of the campaign, before he left New Orleans, Gen- 
 
26 
 
 oral Jackson presented Mr. lA\'m^Um with is miniature painted 
 on ivory, as a mark of the sense he entertained of his public 
 service, and as a token of private friendship and esteem. The 
 picture is now at Mont<romery IMace, the country seat on the Hud- 
 son, which Mr. Livingston inherited from his sister, Mrs. ^lont- 
 t;omery. He looked deep into the future, and pre.ssed upon the 
 attention of Andrew J*dckson its great opportunities. "General," 
 .said .Ml-. Living:ston, addressing him, "you must be President of 
 the United States. You are the ^Ian !" 
 
 In 1820. .Mr. Livingston became a member of the Legislature 
 of Louisiana, and was made Chairman of the Committee of Ways 
 and Means, in the House of Representatives. Joined with Louis 
 Moreau Lislet, and Pierre Derbigny, he rendered fresh service to 
 the .jurisprudence of the State, in the preparation of the Civil 
 Code of 1825. His part of the work was largely on the subject 
 of Conventional Obligations. It has been truly said of Judge 
 Martin, that he possessed a legal mind of the first order. He had, 
 according to the testimony, studied Pothier on Obligations until it 
 seemed to have become part of the te.xture of his brain. He pub- 
 lished a translation of this greatest of law books. ^Ir. Livingston 
 resorted to the same profound treatise, and thus enriched with the 
 labors of Pothier the most difficult and scientific portion of the 
 Civil Cixle. If he had done no more for legal science, he would 
 have realized the ambition of Sir William Jones, who declared, as 
 the result oF his own marvelous erudition, that he would consider 
 himself as having, to a certain extent, discharged the debt which 
 every man owes to his profession, if liis fondness for jurisjiru- 
 dence should never produce any greater l)cncfit to his countrymen 
 than ail introduction to the writin<js of Pothiir. 
 
 Mr. Livingston now entered upon the great work of his life, the 
 preparation of his book on Criminal Jurisprudence. Ai)pointed 
 in 1821, to prepare a Code of Criminal Law, he nuule an elaborate 
 rcpoi't at the next session of the T^'gislatm-*'. The report was at 
 once adopted, and he was urged to prosecute the work. He pro- 
 ceeded under this authority, and two years iu-tcr was ready to 
 sul)mil the complete rCsult of his arduous labors. The project 
 had filled his thoughts for nuuiy years. He first conceived it 
 up(»n the perusal of the works of Jeremy Bentham. He had been 
 
27 
 
 deeply impressed with the defects in our system of penal law, but 
 the study of Bentham's works gave method to his ideas, and first 
 brought him to consider legislation as a science, governed by cer- 
 tain principles applicable to all branches, instead of an occasional 
 exercise of its powers, called forth by particular occasions, with- 
 out relation to or connection with each other. He had given a 
 final revision to his work, and an engrossed copy for the printer 
 had been made, when he retired for the night for rest, but was 
 awakened by the cry of fire. INIrs. Livingston was first to ascer- 
 tain the bad news, and to return with it to him. A spark from 
 the study lamp on the table, where he had been writing, had set 
 fire to his papers and consumed them. "Livingston!" exclaimed 
 his devoted wife, "you are a ruined man! Your code has been 
 destroyed by fire ! " " Never mind, my dear, ' ' was the ready an- 
 swer of this most amiable of men, "it shall rise like the Phoenix 
 from its ashes ! ' ' The next morning he sat down to the heavy 
 task of re-writing the code. He Avas now an old man, being sixty 
 years of age, but he worked so effectively, thai he was able to 
 supply the demands of the printer as fast as they were mat'e, a ad 
 in two years more had reproduced the work. 
 
 The aim of }t was to bring under one system. Crime, Vagrancy, 
 Mendicity, and all forms of pauperism. It provided, first, a 
 Houj:e of Detention for misdemeanants and for witnesses; sec- 
 ond, a penitentiary for criminals above eighteen years who have 
 been convicted of crime ; third, a House of Refuge and Industry 
 for graduates of the penitentiary who were willing to work, but 
 compulsory work for able-bodied beggars and vagrants, including 
 prostitutes ; fourth, a school of reform for persons under eighteen 
 who were to be taught some mechanic art. 
 
 The work was divided into a Code of Procedure, a Code ?,2 Evi- 
 dence, a Code of Reform and Prison Discipline. 
 
 Capital punishment was to be abolished. Imprisonment for life, 
 in a solitary cell, was substituted for it. Self-examination was 
 invoked for discipline. Labor was regarded as a privilege and*Qot 
 a punishment. Flogging in the penitentiary was prohibited as too 
 degrading, and was to be kept within strict limits in the School of 
 Reform, Avith the hope of dispensing with it even there. Criminals 
 convicted of a penitentiary offense were to suffer solitary confine- 
 
28 
 
 ment. Their lot, ^enorally speakintr, where they craved employ- 
 ment, was to be improved— fii-st, by better diet ; second, liy partial 
 relief from solitmle. and, throii^^h the instrumentality of educa- 
 tion, bv the visits and lessons of a teacher; third, bv permis<iou 
 to read books of instruction ; fourth, by the jirivile^e of r»^ceivin<; 
 friends at stated periods ; after the convicts had proved desire to 
 reform, by allowing them the privilc«re of laboring in society ; and 
 finally by a certificate of ^ood conduct, industiy and skill in the 
 trade i)ractised in prison. 
 
 Mr. Livinj^ton had a free, enlig^htcnetl and pro^Tcssive mind. 
 His heart was a temple of benevolence. He was at least 
 the time of a ^feneration in advance of teachers and 
 reformei-s in this country on the subjects treated by him. With 
 him the frreat object of penal legislation was the prevention of 
 crime. A convict was a man. and some jrood mi»rht proceed even 
 from a convict. Crime was pronounced to ])e the effect princi- 
 pally of intemperance, idleness, ignorance, vicious associations, 
 irreligion and poverty, but not of any defective oriranization. 
 The laws which permit the continual and unrestrained exercise of 
 these causes, are themselves the source of those excesses which 
 legislators, to cover their own inattention or indolence or ignor- 
 ance, impiously a-cribe to the Sui)reme being, (iod. he main- 
 tained, has not created man incapal)le of receiving impressions of 
 good. Himself of a tender and loving disposition, he shrank with 
 horror from the infliction of merciless and brutal punishments. 
 He proposed to abolish all constructive offenses and all dis- 
 tinctions between strict and liberal construction of statutes. He 
 forbid every departure from the plain letter of the written law, 
 and on the tiial of a criminal charged under an ambiguous act, 
 he iiMpiircd the court to accpiit the accused, and report the ca-se 
 ro the liCgislature. lb- advocated the removal of ol)stacles to 
 the investigatiim of truth. At that di.stant day, he was already in 
 favor of iiiliiiittiuL' tin- |)arties to a suit to testify, and was for 
 redhcing the ri'course to privileges. l>y which thi^ exclusion of 
 testimony would be accomplished. 
 
 The report which ])rec('(lcd his work and the scpai'atc cs.says in 
 which the dilVerent Codes were presented, attracted wide-spread 
 attention, llis reputation "grew and mounted" with the publi- 
 
29 
 
 cation of them. He became well known in Europe. His style 
 had been carefully formed upon the best models. It was now 
 seen to be simple and dignified, persuasive and classical. He 
 used the principles of justice, good faith and benevolence in the 
 natural law, to introduce and support positive regulations de- 
 signed to protect society by encouraging the vicious and degraded 
 to show themselves capable of improvement. A system thus sus- 
 tained, he urged, had never yet been resorted to. It was impossi- 
 ble to deny with success, that it was at least worth while to try 
 an experiment which the lawgiver pressed, with extraordinary 
 ability, and with the fervor and eloquence of sincere conviction. 
 It was out of the question to treat him as a mere visionary, or to 
 misunderrstand what his view really was, because he derived it 
 from the great universal law of human nature— that law on which 
 Cicero has bestowed his lofty eulogium : Non erit alia lex Bomae, 
 alia Atkenis, alia nunc, alia posthac; sed et omnes gentes, e; onini 
 tempore, una lex, et sempiterna et immortalis, coniinebit. ■ 
 
 The Code was translated into admirable French by Jules 
 D'Avezac, President of the first college established in New Or- 
 leans, and was in this way made immediately available in France. 
 It was also published in German. The French version was edited 
 with copious notes by Taillandier, a distinguished counsellor of 
 the Court of Cassation, and was laid before the Council of Super- 
 intendents of Prison Discipline in the City of Paris. Victor Hugo 
 wrote to the author : "You will be remembered among the men ol 
 this age who have deserved most and best of mankind." Ville- 
 main declared that the proposed system of penal law was "a 
 work without example from the hands of any one man." The 
 Code w^as also reprinted in England by Doctor Southwood 
 Smith. Jeremy Bentham proposed that a measure should be in- 
 troduced in Parliament to print the whole Avork for the use of 
 the English Nation. The Westminster Review for January, 1825, 
 concluded an article on the London edition^ referring to Mr. Liv- 
 ingston, the writer said : 
 
 "In England, the eyes of its most enlightened philosophers, 
 "of its best statesmen, and of its most devoted philanthropists 
 "will be fixed upon him, and in his own country his name will 
 "be held in lasting remembrance, venerated and loved. He is 
 
30 
 
 "one of those extraonlinarv individuals wlumi nature has pftecl 
 "with lilt' jxnvor. and wlioni circumstances have aft'orded the 
 "opportunity, of sh('(Ulinfr true ^lor>' and conferrinfr lastinpr hap- 
 "piness on his country, and of identifying: his own name with the 
 "freest and most nohle and most perfect institutions." 
 
 Elaine, Professor of Civil Law at Camhridfre, author of a pro- 
 found treatise, entitled "Ancient Law," pronounced him "the 
 first lejral crenius of modern times." Harvard Collejre proceeded 
 to confer on him the decree of Doctor of Laws. The P^mperor of 
 Russia and the Kin<r of Sweden wrote him autoprraph letters of 
 contrratulation. Brazil made his Code the basis of her jurispru- 
 dence of crimes. The King: of the Netherlands sent him a jrold 
 medal havin^: upon it an inscription in his honor. TheCovernment 
 of Guatemala translated one of his Codes, that of Reform and 
 Prison Discipline, and adopted it word for word. He received from 
 Marshall. Kent, Madison and Story expressions of admiration for 
 his labors as a criminal jurist and law reformer. Jefferson, him- 
 self a reformer of the law. whose past difference with Living:ston 
 made his praise alt Ihe more valuable, wrote to him to say that his 
 work "would certainly arranjre his name amonfr the sapes of 
 antiquity." The Institute of France did him the verv rare honor of 
 choosing: him a foreisrn associate. When, towards the close of his 
 career, he visited Heidelberg: and met Professor ^Mittermaier. an 
 enlifjlitened author and advocate of law reform with whom ]\Ir. 
 Liviufrstoii had corresponded,- the l^rofessor folded Inm in his 
 arms. At (Jeneva, the Count de Sellon showed him a monmnent 
 erected by himself to the inviolability of the life of man, having^ 
 tht' form of a temple, and on which twelve great names were 
 inscribed. 'I'hese included Fenelon, Bacon and Wilberforce. One 
 of the inscriptions was as follows: 
 
 A 
 
 LIVING.'^TOX. 
 IL DKMANDA 
 
 L 'abolition DK I>A 
 
 peine de mokt a 
 
 l'ameriqie. 
 
 Althouf^h, as Kent testifies, Livingston has done more in giving 
 
31 
 
 precision, speciiRcation, accuracy, and moderation to the system 
 of crimes and punishment than any other legislator of his age, 
 and his name has descended to posterity with distinguished honor, 
 the Legislature of Louisiana failed to give its sanction to his 
 work. I do not hesitate to submit in the presence of the Bar 
 Association, that it would have been far more creditable to the 
 State to have adopted it. Perhaps a different result would have 
 been reached, if Mr. Livingston had remained in Louisiana to 
 support his work; but he Mas unanimously elected in 1822 a 
 Representative in Congress, when travel was difficult, and his 
 duties at Washington detained him a great deal from his South- 
 ern home and constituency. Beginning with the session of 1823 
 he was now to serve in the House six years without interruption. 
 After the lapse of nearly a quarter of a century he returned to 
 Congressional life, at a time just as interesting as that when he 
 retired at the clo«e of his first service of six years in the House 
 from the State of New Tork. , ^ , 2_. j, ^ ^ -.v^x^i^ ^<^l<y^ W 
 
 The period of American history^ onding with the Battle of New 
 Orleans was one of financial depression. It was one marked by 
 the establishment of a National Bank. It was the period of Pro- 
 tection to American Industry, and that of the development of 
 Internal Improvements in the ITnited States. It was also marked 
 by the application of the Treating-lMaking power, and by mem- 
 orable debates regarding the interpretation of this delicate and 
 important power : finallv, it was the period of the pernicious an(L 
 
 destructive doctrmes of Nullification and Secession, and of the 
 
 A. 
 
 anti-slavery agitation, and once more a time of public distress.* 
 
 Mr. Livingston's opinions as a Republican, so far from having 
 yielded, had, with time, acquired fresh energy. He was, however, 
 far in advance of Madison, Monroe, the Randolphs and Macons, 
 and other Republican statesmen regarding the doctrine of Inter- 
 nal Improvements, which the Democratic party showed itself so 
 slow to adopt. Upon his reappearance in the House of Repre- 
 sentatives he made an elaborate speech to maintain the proposi- 
 tion that the Government of the United States has the constitu- 
 tional right to make such roads and canals as are necessary and 
 proper for the transportation of the mail, for giving facility to 
 
 *Bentou 's Thirty Years. 
 
32 
 
 militan' operations, and to commercial intercourse between the 
 States. Jefferson, who jrreeted with sincere prat uhit ions his 
 return to public life, expressinor the strongest eontidcnce in his 
 powers and j)urposes. and his cordial esteem for him, did not 
 conceal his dissent from the doctrine of the speech. 
 
 In 182() Mr. Livinjrston paid his debt to the (Jovemment. The 
 adnjinistration in power was one to which he was in political 
 opposition, but it accepted his propositions and received in satis- 
 faction of the debt certain property which he had succeeded in 
 disembarrassinp: from litipration. Not lono: afterwards the Gov- 
 ernment realized from the sale of the property in question, some 
 $6000 more than tlie debt, principal and intere-st, amounted to. 
 
 In January, 1826, he made a speech upon a bill Itcfore the 
 House to amend the judicial system of the United States by cre- 
 atin«r new circuits, and demanded for Louisiana, for reasons of 
 public policy, but especially because of her admission into the 
 Union on a footinjr of etpiality with the oriirinal States, the ben- 
 efit of a circuit .iudjje as allowed by the i)endin«; act to other 
 States. He introduced into the House and succeeded in carrying 
 a bill for the erection of lipht-houses, beacons, buoys and tloatinj; 
 lights alon«r the track of navip:ation between New York and New 
 Orleans, and secured the erection in the Citv of New Orleans of 
 a federal buiklinfr. He exhibited deep interest in the construc- 
 tion of the trreat national road, aTid in the scheme for a ship canal 
 across the Isthmus of Panama. 
 
 General Jackson took his seat as Senator from the State of 
 Tennes.see at the same time that Mr. Livin»rston re-entered the 
 House. He renewed his cordial intercourse with Jackson. They 
 had corresi>onded with each other for years. He supported liim 
 for President in the campaitrn of 1S24. where the latter failed, 
 and the eh'ction p'ttin^' into the IIoum'. Mr. .\dams was chosen. 
 His course was not taken from any dislike to ."Mr. Adams, for he 
 felt none; on the contrary, he had a hiizh opinion of his talents 
 and inte^^rity, but from a decided preference for the other candi- 
 date, whose <|ualities he thou«rht better fitted him for the place, 
 lie claimed that (Jeneral Jackson in his conduct of the defence 
 of New Orleans, had developed the resourc«*s of a mind e(|ual to 
 any task which the service of his country could recjuire. Energy 
 
33 
 
 combined with prudence ; courage to face not only dangers in the 
 field, but to incur the responsibility of every measure, however 
 unpopular, if necessary^ for the defence of the country; stern 
 integrity ; the most disinterested contempt of private emolument ; 
 courtesy of manner that won the hearts of all who approached 
 him, and that commanded the admiration even of the enemy, in 
 his epistolary intercourse ; and, above all, a respectful submission 
 to the laws, even when they were so administered as to impose a 
 heavy penalty for acts which the preservation of those laws, in his 
 opinion, made necessary. 
 
 To the very great regret of General Jackson, Mr. Livingston, 
 after serving three terms in the House of Representatives, was 
 defeated in his candidacy at New Orleans for re-election. But 
 the Legislature of Louisiana, at its next session, proceeded to 
 elect him Senator of the United States, and he began his term 
 in the Senate with the inauguration of Jackson, March 4th, 1829, 
 as President of the United States. 
 
 The President had from the beginning desired to employ Mr. 
 Livingston in the business of the French spoliation claims, then 
 in a critical stage with France, but he found himself unable to 
 leave the Senate. He participated in the celebrated debate on 
 Foote's resolutions, in the course of which Daniel Webster deliv- 
 ered the most admired address to be found in American Congres- 
 sional history. The speech of Mr. Livingston contains, in addi- 
 tion to a very carefully prepared and instructive enquiry intc 
 the nature of the Government of the United States, many pass- 
 ages which glow with love of country, and which give expression 
 to the feelings of the speaker as a patriot, in a style of excellence 
 deserving of admiration for its purity and beauty. The speech 
 denied the existence of Nullification and Secession as constitu- 
 tional remedies, and defended the Virginia resolutions of 1798 
 against the charge of having approved those political heresies. 
 These views of IMr. Livingston conform to the interpretation 
 placed upon the resolutions by their illustrious author, Mr. Mad- 
 ison. ]Mr. Livingston voted with true independence to override 
 President Jackson's Ai'eto of the Maysville Road Bill, and the 
 Washington Turnpike Bill. March 3, 1831, he obtained leave to 
 bring in a bill, the object of which was the adaptation of his 
 
34 
 
 system of ponal law to tlie wants of the Federal (jovenunent. He 
 asked attention t(» two of its featnres— the provisions for defining 
 and punishin«r. by positive hiw, offenees a^'ainst the hiw of 
 nations, anil the total abolition of the death jienalty. The work 
 was printed for further consideration, but at the next session ^Ir. 
 Livin'Tston had eeased to be a Senator, and the subject was not 
 taken up again. 
 
 On the dissolution of Jackson's first Cabinet he was appointed 
 Secretary of State, and having been unanimously confirmed, ^la.v 
 24, 1881, entered upon the duties of the office and continued for 
 the period of sonic two years in the discharge of them. 
 It devolved upon him as Secretary of State to prepare the 
 proclamation of President Jackson of December 10, 1832. on the 
 occasion of the adoption by a convention of the people of South 
 Carolina of the ordinance of Nullification. The question 
 of the American system, but especially that of a high i)r()tec- 
 tive taritT', having been put at issue in the Presidential elec- 
 tion of 1832, the decision was against the system. South Car- 
 olina had held aloof from the election and thrown away her vote 
 on citizens who were not candidates. The result of the election, 
 instead of rpiieting her apprehensions, as ought to have been the 
 case, seemed to intlame them, and on the 24th of November, 1832, 
 a fortnight afterwards, she adopted her ordinance of Nullifica- 
 tion, the (tbject of Nvhich was to nullify certain acts of the Con- 
 ffress of the United States, puri)orting to be laws levying duties 
 and imports on ihe importation <tf foreign connnodities. The 
 ordiiuince placed the State in an attitude of open resist 
 ance to the laws of the United States, to take effect on the l.st 
 of February ensuing; and if, meanwhile, any attempt should be 
 made in any way to enforce the law (being "an Act in alteration 
 of the several acts imposing duties on im])orts, approved on the 
 nineteenth (h\y of Ma.v, one thousand eight hiuidrcd ami twenty- 
 eight, and also "an Act to alter and amend the several acts im- 
 posing duties on imports," approved on the f(un*tcenth day of 
 July, one thousand eight hundred and thii-ty-two.) the fact of 
 such attempt was to terminate the continuance of South Carolina 
 in the Union — to absolve her froni all coniKM-tion with the Federal 
 Ciovernment, ami lo i-stablish lier as a separate government. 
 
35 
 
 The proclamation of the President examined the provisions of 
 the ordinance of Nullification, and announced his attitude against 
 the Xullifiers. Here, it was pointed out, is a law of the United 
 States, not even pretended to be unconstitutional, repealed by 
 the authority of a small majority of the voters of a single State. 
 Here is a provision of the Constitution which is solemnly abro- 
 gated by the same authortiy. The ordinance grounds on such 
 reasonings and expositions, the right to annul the laws of which it 
 complains, but contains a threat to secede from the Union if any 
 attempt is made to enforce them. The right to secede is deduced 
 from the nature of the Constitution, which, as asserted, being a 
 compact by sovereigns, they who made it having reserved their 
 sovereignty, can break it when in their opinion it has been de- 
 parted from by other States. 
 
 The proclamation insisted upon the radical error involved in 
 such a position. It took the ground that the people of the United 
 States formed the Constitution, acting through the State Legisla- 
 tures in making the compact, to meet and discuss its provisions, 
 and acting in separate conventions when they ratified those pro- 
 visions; but the terms used in its construction show it to be a 
 Government in which the people of all the States collectively are 
 represented. The Constitution operates directly on the citizen. 
 It is intended to be everlasting. It does not contain the flagrant 
 absurdity of giving a power to make laws and at the same time 
 another to resist them. The Constitution forms a Government, not 
 a league, and whether it be formed by compact between the States, 
 •or in any other manner, its character is the same. It is a Govern- 
 ment in which all the people are represented, which operates 
 directly on the people individually, not upon the States — they 
 retain all the power they did not grant. But each State having 
 expressly parted with so many powers as to constitute, jointly with 
 the other States, a single nation, cannot from that period possess 
 any right to secede, because such secession does not break a 
 league, but destroys the unity of a nation ; and any injury to 
 that unity is not only a breach which would result from the con- 
 travention of a compact, but is an offence against the whole 
 Union. To say that any State may at pleasure secede from the 
 Union is to say that the United States are not a nation ; because 
 
36 
 
 it would be a f?olocisni to contend that any part of a nation might 
 dissolve its connection with the other parts, to their injury or 
 ruin, without committing: any otfence. Secession, like any other 
 revolutionary act. may be morally justified by the extremity of 
 oppression, but to call it a constitutional right is confounding the 
 m»'aning of terms. 
 
 The proclamation {)ointed out. conceding the laws comi)lained 
 of to have been unwisely passed, that they by no means justified a 
 recourse to revolution. It dwelt upon the blessings of the Union 
 and the glorious part of South Carolina in its formation — the 
 dangers which must follow any attempt at dissolution. It ap- 
 pealed to the people of South Carolina in the affecting language 
 of a father — it invoked the memories of their Revolutionary 
 ancestors in order to influence them to desi.st from the course on 
 which tliey had entered — it called on them as they prized the 
 peace of their country, the lives of its best citizens, and their own 
 fair fame, to retrac*^ their steps— to snatch from the archives of 
 their State the disorganizing edict of its convention — to bid its 
 members to reassemble, and promulgate the decided expressions 
 of the will of the people of South Carolina to remain in the path 
 whicli alone could conduct them to safety, honor and prosperity. 
 
 The President, pending the preparation of the proclamation, 
 wrote to Mr. Livingston to submit to him a few lines for consider- 
 ation. He a.sked the Secretary of State to give the prodamaticm 
 his best flight of eloquence, to strike to the heart and speak to the 
 feelings of his deluded fellow countrymen. He then added : "The 
 "Union UMist ))<■ preserved without bloo<l. if ibis be possible; 
 "but it must be preserved at all hazards and at any i»rice." 
 Horatio Seymonr. who was twice Governor of the State of New 
 York, and who received the nomination of tin* national Demo- 
 cratif party for the Presidency in lS(i8, published towards the 
 close of his life an address in which lie cited a European publi- 
 cist as having de<'lared. at a time when he Wits ignorant of the 
 fact that the Proclamation against the Nullifiers and the Heport 
 to the Legislatiire of Louisiaiui on Criminal Law, in favor of 
 abolishing the penalty of death, were written by the same author, 
 that they were tlie productions of finest excellence ever seen by 
 him from an American statesman. 
 
37 
 
 The proclamation of Jackson was received with defiance by 
 the nullifiers. The State of South Carolina adopted measures to 
 arm herself. I\Ir. Calhoun resigned the Vice-Presidency and 
 entered the Senate to do battle for Nullification. Henry Clay 
 took +he field as the champion of compromise. The President 
 called for strong measures, and the force bill was passed. The 
 collection of the revenue was transferred to a ship-of-war, and 
 the frigate Natchez, in order to do this duty, dropped anchor in 
 Charleston Harbor. Mr. Clay procured simultaneously with the 
 passage of the force bill a measure for the reduction of the tariff 
 until 1842, when it was to stand at 20 per cent, reduction with a 
 large free list. Clay contended that the Force Bill and the Bill 
 of Peace should go together for the peace of the country : the 
 first to vindicate the authority and supremacy of the Union, the 
 second to offer that which, accepted in the proper spirit, would 
 supersede employment of force. South Carolina proceeded to 
 repeal her Nullification ordinance. The country welcomed the 
 bill of Mr. Clay with great favor. It won for him a second time 
 the title of Pacificator. 
 
 Senator Benton says that this famous compromise mooted in 
 the Senate by Mr. Clay and Mr. Calhoun as a problem between 
 themselves, belongs to neither, but to John M. Clayton, Senator 
 from Delaware, under the instrumentality of General Jackson. 
 The effort to bring about an understanding between Clay and 
 Calhoun on the tariff had failed. In this crisis of our country 's 
 history Daniel Webster, the great Senator from Massachusetts, 
 was opposed to compromise, and came without hesitation to the 
 support of the President. General Jackson would admit of no 
 further delay. He said he would have no further delay. He 
 would execute the laws. This was communicated to Mr. Letcher, 
 in order that it should reach Mr. Calhoun. Senator Josiah S. 
 Johnson, of Louisiana, went to the room of Mr. Calhoun at night 
 and informed him that General Jackson was determined to take 
 a decided course at once, which was understood to signify an 
 arrest and trial for high treason. Mr. Calhoun was evidently 
 disturbed. 
 
 A committee having been appointed, it was resolved to pass 
 Mr. Clay's bill, provided the Southern Senators, including the 
 
38 
 
 nnllifiers. should vote for the amondinents to ho proposed by 
 Mr. Clay, but esppoially the boiup valuation feature. Rut the 
 amendments were voted down in eonnnittee. Senator Clayton 
 then determined to have the same amendments offered in the 
 Senate, and notified ^Ir. Clay and ^Ir. Calhoun that unless the 
 amendments were adopted, and Ihat by every Southern vote, 
 everv nullifier inelusively. that tlie bill should be defeated. The 
 reason, as Benton explains, for making the nullification vote a 
 sine qua non was to eut off the Senators who voted for the meas- 
 ure from pleading unconstitutionality after they were passed; 
 and to make the author.s of disturbance and armed resistance 
 parties upon the record to the proeeedinprs, which were to pacify 
 tliem. As Senator Clayton was inexorable, after much consulta- 
 tion, they aprreed to all the amendments, except that revoltinp: one 
 of home valuation. At last they offered to support and to pass the 
 bill, but without Mr. Calhoun's vote. But Mr. Clayton declined. 
 One day oidy was left before final adjourrmient, and they sur- 
 rendered. ]\Ir. Calhoun, as well as the others, voted for the 
 amendments and afterwards for the whole bill. Their assent was 
 in this way given to that protective legislation against which they 
 were then raising troops in South Carolina, but Mr. Calhoun had 
 saved himvelf from the peril in which he stood from the inflexible 
 purpose of the President. Time, instead of diminishing the' 
 slalure of Andrew Jackson, has only added to it. In the Presi- 
 dential contest of 1828 he had overthrown the high tariff of that 
 time. The influence of his victory facilitated the modification of 
 the tariff. His unconqueral)le resolution enforced submission to 
 the Covernraent of the United States. In action how great he 
 was! 
 
 Oil .May 20th. IS.'^?:^. iiinnediately upon resigning tlu^ office of 
 Sccretarv of Stat(\ in ii<-"ordan('e with the desire of the President 
 that he should undertake the conduct of the claim of the United 
 States for indemnity for the French spoliations. Mr. Livingston 
 was appointed Minister to France. Tin- President addressed him 
 a letter in which he adverted in terms of praisi* both to his ser- 
 vices in the campai<_Mi at New Orleans, as well as to his manage- 
 ment of the Department of State. .August 14tb. 18.18, he em 
 harked on the 74-gun ship Delaware at New York. A salute was 
 
39 
 
 fired on his coming on board, and the noble vessel spread her sails 
 and stood out to sea.* On September 12th he arrived at C|ier- 
 bourg. The claims of the United States, which Mr. Livingston 
 went abroad to recover, had their origin in the British orders in 
 council and the Berlin and Milan decrees of Napoleon. A. D. 
 1804 Great Britain declared the French coast under block- 
 ade from Ostend to the Seine, and in 1806 the blockade was 
 extended from the Elbe to Brest. Napoleon answered by the 
 Berlin decree of November 21, 1806, establishing the continental 
 system and designed to put a stop to trade between Great Britain 
 and the continent of Europe. Thereupon the British orders ir? 
 council of January 7 and November 11, 1807, were issued, de- 
 claring a blockade of all places and ports belonging to France 
 and her allies from which the British flag was excluded. Na- 
 poleon retaliated by the Milan decree, declaring every vessel 
 sailing from England or her colonies, or paying taxes to her or 
 submitting to search by England, should be lawful pri/e. These 
 decrees were the instruments by which the commerce of neutrals 
 and especially the maritime commerce of the United States was 
 destroyed. 
 
 Bj^ the treaty of July 4, 1831, negotiated by ]\Ir. Rives with 
 Louis Philip, the indebtedness of France to the United States 
 had been fixed at 25,000,000 francs, payable, with interest, in six 
 yearly installments. This action required the aspent of the 
 Chamber of Deputies for the appropriation. The Secretary of 
 the Treasury, Mr. McLane, drew a bill for the first installment, 
 the bank negotiating the bill transferred it to a third person who 
 presented it, and the bill having been declined, on the ground 
 that there was no appropriation to meet it, was protested and 
 returned. This was the immediate occasion for the appointment 
 of Mr. Livingston. He urged at once a special convocation 
 of the Chambers in order to pass the legislation required, 
 but the King showed reluctance to resort to such an 
 expedient, and delayed action to find a more favorable 
 opportunity. At the same time friendly representations 
 were conveyed to Mr. Livingston, who was assured thai 
 .the necessary measure would be presented at the ap- 
 
 * Journal of E. Livingston, 
 
40 
 
 proachinp reprular session and would doubtless be successful 
 The ministry had not ventured to ask the Chamber of Deputies 
 for an appropriation, up to the time of the dishonor of the draft 
 of Mr. MeLane. An application was made a few weeks after that 
 event, but it got no further than a reference to a committee. At 
 a later time in the same year, another l)ill was introduced with a 
 like result. It was not until six months after Mr. Livingston's 
 arrival that tinal action was had, and then, unhappily, the 
 Chaml)er refused by a ma,iority of eight to make the appropria- 
 tion. The King dispatched a coverette with instructions to his 
 Minister at Washinprton that the new Chamber should be called 
 together soon after the election; that the pro jet dc loi should be 
 laid before them -. that all constitutional means should be exerted 
 to carry the apj)ropriation, and that the result would be made 
 known early enough to enable the President to communicate it to 
 Congress at its annual session.* 
 
 The King, however, did not submit the nuitter to the new 
 Chamber as he had suggested. The President in his annual 
 message in 1834 made a recital of the whole business, and Mr. 
 Livingston having reported a eontidential intimation he had 
 received from the King of F^rance, that an earnest passage in the 
 message might secure payment, the President actually j^roceeded 
 to reconnnend reprisals.* The French exclaimed against this as a 
 threat which madr it impossible for France to i)My without dis- 
 honor, and it liccaiiie necessary to do something to keep open 
 friendly negotiations. This was accomplished by reference to the 
 committee on foreign relations in the SiMiate. of which Mr. Clay 
 was chairnum. He insisted that while the President and the whole 
 people of the United States .stood together and the indemnity was 
 due. it behooved our Ciovernment not to anticipate breach by 
 France of her solemn engagements and to treat her with confi- 
 dence'. It was unanimously resolved in conseijuence. by the Sen- 
 ate. .January 14. 188'). that any legislation at that time was inex- 
 pedient. The Ciovernment of England inter\'(>ned to tender its 
 offices, as a mediator, but France n-tccatcij from her original 
 <lemand for .satisfactory cx[)ianations of ilir President's message 
 of 1884. by saying that the President's annual message of 1835 
 (which wa.s addressed to the American Congress only, and in 
 
 * Hunt's Life of Livingstou. 
 
41 
 
 which he said he had never used any menace) was a sufficient dis- 
 claimer. The money was paid, and the incident was closed with 
 increase to the popularity of Jackson. 
 
 But payment was not made to Edward Livingston. Whei~« 
 the message of President Jackson reached France it produced 
 great excitement. The Comte de Rigny informed Mr. Living- 
 ston that His Majesty had considered it due to his own dignity 
 not to have his Minister any longer in Washington, and that the 
 communication was made in order that ]\Ir. Livingston might take 
 
 » 
 
 those measures which might seem to be natural consequences, and 
 that the passports which he might desire were at his disposal. 
 
 Mr. Living-ton wrote immediately in reply, that if the note of 
 the Comte de Rigny was intended as an intimation of the course 
 which, in the opinion of His jMajesty's Government, he ouglit co 
 pursue, he could take no directions and follow no suggestions but 
 those of his own Government, which had sent him there to repre- 
 sent it ; but if it was intended as a direction that he should quit 
 the French territory he would comply with it forthwith, leaving 
 the responiiibility where it ought to belong. In fulfilling 
 his promise to i-eply at length to the Comte de Rigny, 
 he said it was his purpose to convey to the latter infor- 
 mation which seems to have been wanted by His Majesty's ]\rin- 
 i^ter, when on a late occasion he presented a law to the Chamber 
 of Deputies. It was proper, therefore, to state, that although thi; 
 military title of General was gloriously acquired b}'^ the present 
 head of the American Government, he is not, in official language, 
 designated as General Jackson, but as "the President of the 
 United States, ' ' and that communications were to be made to him 
 in that character. 
 
 The issue which the correspondence had developed was stated 
 by him with admirable temper in the following manner : 
 
 ' ' I have no mission. Sir, to offer any modification of the Presi- 
 " dent's communication; 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, any explanations of 
 "a document of that nature. But the relations which previously 
 "existed between 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) 
 
42 
 
 "all convince me that it was not incompatible ^^•ith self-respect, 
 "and the dijjrnity of my country to enter into the details I have 
 "done. The same reasons induce me to add. that the idea, erro- 
 "neously entertained, that an injurious menace is contained in 
 "the message has prevented your p]xeellency from g:iving a 
 "proper attention to its lanfrua<:e. A cooler examination will 
 "show that, althoujih the President was obliged, as I have demon- 
 "strated, to state to Congress the engagements which had been 
 "made, and that in his opinion they had not been comj)lied with, 
 "yet, in a communication, not addressed to His ^lajasty's Gov- 
 "ernment, not a disrespectful term is employed, or a phra.se that 
 "his own sense of propriety, as well as the regard which one 
 "nation owes to another, would induce him to disavow." 
 
 The Chamber of Deputies soon determined to appropriate the 
 money, and passed a bill to do so on the 18th of April, Init with a 
 proviso that the payment should not be made until the French 
 Government should have received satisfactory explanation of the 
 terms used by the President in his annual message 
 ]\Ir. Living.ston's instructions not having provided for .such a 
 contingency, in dependence on his own judgment he denuinded his 
 passports, leaving in Paris the Secretary of the Legation, ^Ir. 
 Barton, as charge d'atTaires. Tn doing so, he addressed a commu- 
 nication to th(^ Comte de Kigncy, whicli he concluded by observ- 
 ing: 
 
 "If the pi-incipie ( foi- wiiich Franci' had contended) is correct 
 "every connnunication which the President nuikes in relation t() 
 our foreign affairs, either ti> the Congress or to the public, ought 
 "in prudence to be previously submitted to tlio-^e Ministers, in 
 "order to avoid disputes juid troublesome and hiniiiliating ex- 
 "[>lanations. If the ])rinciple be .submitted to, neither dignity 
 "nor independence is left to the nation. To submit even to a 
 "discreet exercise of such a i)rivilege would be troublesome and 
 "degrading, and the inevitable abuse of it could not be borne. It 
 "must therefore l)e resisted at the threshold, and its entrance be 
 "forbidden into the sanctiiary of domestic con>ultations. But 
 "whatever may be the ])rinciple of other governments, those of 
 "the United States are fixed: the right will never be acknowl- 
 " edged, and any attempt to enforce it will be repelled by the 
 "undivided energy of the nation." 
 
43 
 
 He returned to the United States in the frigate Constitution. 
 His conduct of the delicate and important business which had 
 been entrusted to his direction in France received the cordial 
 approval not only of the President and of his administration, but 
 of his fellow-citizens throughout the country. Crowds of people 
 gretted him on his landing in New York and followed him to his 
 dwelling. He held a public reception the next day, on the request 
 of the Common Council, in the Governor's Room at the City 
 Hall. A public dinner was given in his honor. 
 
 He withdrew now to ]\Iontgomery Place, his beautiful country- 
 seat on the Hudson. He took delight in nature. Freed from the 
 cares of office, he enjoyed the real happiness he had always found 
 in home and the domestic relations. With gathering years his 
 heart warmed more and more to his native country. He made but 
 one address in public after his retirement. He appeared as coun- 
 sel for the municipal authorities in the 'case of the City of Ne\' 
 Orleans vs. the United States, 10 Peters 691. He was associated 
 with Daniel Webster. On the other side Benjamin F. Butler, 
 Attorney General of the United States, appeared. Mr. Butler 
 having in the argument cited with great respect Mr. Livingston's 
 answer to Mr. Jefferson in the Batture case, the former took occa- 
 sion to observe: 
 
 "The reference to the pamphlet from which the argument has 
 been drawn, the flattering terms in which the Attorney General 
 has been pleased to speak of it, and the possibility that in look- 
 ing at it the court may recur to other parts than those immedi- 
 ately relating to the question 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 have 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 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 opponent 
 always obliged him to regret tl^at he had been forced to use. He 
 is happy, however, to say that at a subsequent 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 
 
44 
 
 "the maxim of a ct'k'brated FreiU'li author is true) of forj^iving 
 "the man upon ^vh()m he had intlieted it. Tlie court, 1 hope, will 
 "excuse this personal digression-, hut 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 to me." 
 
 His brief visit to Washington ended, he returned to Monlgom 
 ery Place where, after a very short illness and with his family and 
 friends around him, he died on ^londay, ]\Iay 23. IS'Mi. 
 
 His remains were laid to rest with tho-e of his kindred in the 
 family vault of the Livingstons, constructed after the manner of 
 things long since gone by, in the hill-side at Clermont on the 
 Hudson, formerly the lower manor of that name. Some j^ears ago 
 a dear lady who had many reasons to reverence his memory, 
 piously removed his dust to the toiuh of his wife, Louise Living- 
 ston, and of their daughter and only chiM, Mrs. Rarton, under- 
 neath the Methodist Chuivli. in llic village of Rhinebeck, Duchess 
 County, New York, where the land (Ui which the church edifice is 
 built was the gift of Janet Livingston, his sister, widow of the 
 heroic Montgomery. 
 
 The statue, in bronze, of Robert R. Livingston has been erected 
 by the State of New York in Statuary Hall in the Capitol at 
 Washington. .Th<^ history 1 have given here, imperfect as I 
 am conscious it i-; (notwithstanding the very free use I 
 have made of the materials at my disposal), justifies, I trust, 
 the suggestion, tliat when Louisiana conies to contribute to Statu- 
 ary Hall the historic figures which fall to the share of the State, it 
 will discharge a j)roud and honorable duty to itself, by erecting, 
 where it may be associated forever with Ihaf of his brother, n 
 statue to Edward Livingston. Representative- and Senator in 
 Congress, Secretary of State under the Ciovernment of the I'nited 
 States, Envoy Extraordinary and ^linister Plenipotentiary to 
 Franr(>, Scholar and Oi-ator, Patriol and Statesman. Jurist and 
 Philosopher, he adorned the annals of hi< country. Elected as 
 an illustrious man, to be metidicr of the Institute of France in 
 honor of his labors for the Reform of tlie Law and of his work on 
 Criminal Jurisprudence, he was nund)cred among the Benefactors 
 of Mankind. 
 

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