Making Cases - The Rise of Henry Brockholst Livingston

Making Cases - The Rise of Henry Brockholst Livingston

The Livingston Family of New York had at least a dozen members who could be considered Founders.

Henry Brockholst Livingston is one of these people and today we will take a look at his long career which started as an Officer in the Revolutionary War and ended on the United State Supreme Court.

Henry Brockholst Livingston

Henry Brockholst Livingston was just 19 years old when he joined the Continental Army.

Livingston, who had recently graduated from Princeton (a classmate of James Madison), was commissioned as a Lieutenant Colonel and became an aide-de-camp for Major General Philip Schuyler.

Being a member of the Livingston Family no doubt helped him achieve this position. For example, his father, William, was a Continental Congressman, 1st Governor of New Jersey and later a delegate to the Constitutional Convention.


After a year with Schuyler, Henry accepted an invitation to serve on the staff of then-hero Benedict Arnold. He was with Arnold during the legendary Battle of Saratoga.

The following year, Livingston resigned to pursue his studies.

Shortly thereafter, he again left school to journey to Spain. His brother-in-law, John Jay, had been appointed as Minister to that nation and Henry would accompany him as a secretary.

Three years later, Livingston returned to the United States. Just before arrival, his ship was captured by the British and he was taken as a prisoner to New York City.

Fortunately, this was in 1782 and the Revolutionary War was effectively over. He was released on parole just three weeks later.

The Weeks Case

Henry finished studying law and went into private practice.

Over the next 20 years he made a name for himself as one of the top lawyers in New York.

This culminated in 1802 when he joined Alexander Hamilton and Aaron Burr as the defense team for Levi Weeks. Weeks was accused of murdering his fiance and (despite the rage of the public) Livingston, Hamilton and Burr were able to secure a verdict of not-guilty.

Suddenly, Henry was chosen to sit on the Supreme Court of New York.

Pierson v Post

In his new position as Justice, Livingston was involved with one extremely important decision.

Pierson v Post was a case which transformed a section of property law in the United States that revolved around fox hunting.

Post was chasing a fox.

Pierson saw the fox, killed it and took the pelt.

Post sued, saying he gave chase and therefore the animal's hide was his property. 

The NY Supreme Court ruled for Pierson, basically saying ‘finders keepers.’

Livingston published a famous decent which argued two main points. First, the chase was on and had Pierson not intervened, Post would have captured the beast. Furthermore, Henry asked what other hunters might have thought, insisting that the code between sportsman was clearly in favor of Post and that was as good as common law.

Supreme Court

Riding the high of his success, Livingston was nominated in 1806 by President Thomas Jefferson to sit as an Associate Justice of the United States Supreme Court and quickly accepted.

Surprisingly, he usually cast his votes with Chief Justice John Marshall and Associate Justice Bushrod Washington. These two were the only high level Federalists remaining in the National Government and the Democratic-Republicans anticipated Livingston balancing them out.

Instead, Henry was cautiously conservative in his decision making, limiting the amount of action which could be taken by the next several Virginian Presidents.

More Supreme Court Founders?

OK, here you go:

Congress Impeaches Samuel Chase

Thomas Johnson Has a Cup of Coffee on the Supreme Court

Alfred Moore Fills a Vacancy

Although Livingston does not have a biography, all the books about John Marshall mention him.

Richard Brookhiser is one of my favorite authors and he just released' ‘The Man Who Made the Supreme Court.’ I highly recommend it.

If you’d like a copy you can get one through the Amazon affiliate link below (you’ll support this site, but don’t worry, Amazon pays me while your price stays the same).

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