Table Of ContentThe Clamor of L awyers
The Clamor of L awyers
The American Revolution and Crisis
in the L egal Profession
Peter Charles Hoffer
and Williamjames Hull Hoffer
Cornell University Press
Ithaca and London
Copyright © 2018 by Cornell University
All rights reserved. Except for brief quotations in a review, this book, or
parts thereof, must not be reproduced in any form without permission in
writing from the publisher. For information, address Cornell University
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Visit our website at cornellpress.cornell.edu.
First published 2018 by Cornell University Press
Printed in the United States of Amer i ca
Library of Congress Cataloging- in- Publication Data
Names: Hoffer, Peter Charles, 1944– author. | Hoffer, Williamjames,
author.
Title: The clamor of lawyers : the American Revolution and crisis in the
legal profession / Peter Charles Hoffer and Williamjames Hull Hoffer.
Description: Ithaca [New York] : Cornell University Press, 2018. | Includes
bibliographical references and index.
Identifiers: LCCN 2018012834 (print) | LCCN 2018015210 (ebook) |
ISBN 9781501726088 (e-book pdf) | ISBN 9781501726095 (e-book epub/
mobi) | ISBN 9781501726071 | ISBN 9781501726071 (cloth ; alk. paper)
Subjects: LCSH: Lawyers—United States—History—18th century. |
United States—History—Revolution, 1775–1783—Causes. | Law—
United States—History—18th century. | United States—Politics
and government—1775–1783. | Political culture—United States—
History—18th century.
Classification: LCC KF361 (ebook) | LCC KF361 .H625 2018 (print) |
DDC 973.3/1—dc23
LC record available at https://lccn.loc.gov/2018012834
Cover images: (above) John Trumbull’s Declaration of Independence, oil on
canvas, 1818. Courtesy of the Architect of the Capitol; (below) Letter
from John Adams to James Warren, October 7, 1775. Courtesy of the
Massachusetts Historical Society.
Contents
Preface vii
Introduction: A Lawyers’ Revolution 1
1. “The Worst Instrument of Arbitrary Power” 16
2. “The Alienation of the Affection of the Colonies” 40
3. “My Dear Countrymen Rouse Yourselves” 66
4. “A Right Which Nature Has Given to All Men” 83
5. “That T hese Colonies Are . . . F ree and In de pen dent States” 120
Conclusion: The Legacy of the Lawyers’ American Revolution 152
Notes 157
A Note on Sources 181
Index 183
Preface
This book explores a series of extended public pronouncements that Brit-
ish North American colonial l awyers crafted from 1761 through 1782. Most,
though not all, w ere composed outside of the courtroom and detached from
ongoing litigation. Although these writings and speeches have been long
studied as po liti cal theory, they are rarely viewed as the work product of ac-
tive l awyers— this despite the fact that key protagonists in the story of Amer-
ican in de pen dence were members of the bar with extensive practices. This
book is an attempt to broaden our understanding of the role that lawyering
played in framing and resolving the revolutionary crisis.
The question of the legality of the Revolution is one that goes back to the
men who participated in the conflict. Depending on where they stood, they
saw it as the triumph of constitutional rights or the betrayal of constitutional
princi ples. In the nineteenth century, the American side of the story was cast
as the pro gress of a constitution of liberty and property rights over a corrupt
and tyrannical imperial government. “This decay of old forms of liberty,”
as the celebratory last lines of George Bancroft’s History of the American
viii Preface
Revolution (1854) phrased it, was but “the symptom and the forerunner of a
new creation.” By contrast, Thomas Babington Macaulay, the greatest of
Eng lish nineteenth- century historians, thought the American Revolution no
revolution at all— merely a vindication of the highest ideals of the En glish
constitution. Other observers, like the legal reformer Jeremy Bentham, had
little good to say of the self- interested “clamour of l awyers,” who preferred
arcane formulas to good common sense.
This book takes up the challenge of John Phillip Reid’s im mensely valu-
able body of work, his complaint that “the dimension of law” was largely
absent from modern accounts of the Revolution. It is still valid. As he wrote
in 1981, the role of law was insufficiently developed and poorly explained.
Interest in the constitutional facets of the Revolution continues to this day in
constitutional forums, including the Supreme Court of the United States.
Getting the intellectual intentions of the Revolutionaries right is more impor-
tant than ever.
Neither a loose co ali tion nor a disciplined cadre, these lawyers were a
collectivity bound by common interest and training, friendship and rivalry.
What then to call them? For the lawyers who committed themselves to the
Revolution, we had thought first that “Patriot l awyers” would serve, as they
saw themselves as servants of the higher good of patriotism, but then so did
the l awyers like Daniel Dulany, Joseph Galloway, Daniel Leonard, Jonathan
Sewall, and William Smith Jr., who ultimately remained loyal to the crown.
There was nothing in the study or practice of law that dictated where one
would come down on the question of in de pen dence. We might have tried
“Whig lawyers” for that is what they would have called themselves, a term
reaching back to the end of the seventeenth c entury in the strug gle between
Whig supporters of Parliament and Tory supporters of the crown— but in
1775, American Whigs were opposed to Parliamentary supremacy and wont
to petition the crown for redress. We considered the awkward term “opposi-
tion l awyers,” for that is what united them and how they saw themselves—in
opposition to the exactions of Parliament and at the end of the crisis opposi-
tion to a tyrannous monarchy. This term, foreign to their own vocabulary, was
too neutral and bland to convey the richness of their thought or the audacity
with which they expressed it, although on occasion we use it below. “Revo-
lutionary lawyers” was our final choice, though surely that was an anachro-
nism, for even the most fervent supporters of in de pen dence among them
were not revolutionary u ntil near the end of the crisis. Even then, the majority
Preface ix
of them saw their task as protecting ancient rights rather than overturning
the very foundations of government. In the end, that is exactly what they
were— revolutionaries. Their opponents then must be the loyal l awyers.
The l awyers at the center of our story knew one another, and one can see
borrowing, exchanges, and rivalry among them. They read and responded
to one another’s briefs and essays. The result was what literary critics call an
intertextualism— a crosshatched pattern of old and new ideas shared in
writings and orations. The context of their writings— the events surround-
ing and occasioning them— also shaped the writings. Fi nally, each man’s
own experience and background influenced how he saw events. The arena
in which t hese exchanges took place was, at first, the courtroom, but by 1764
the lawyers wrote for a wider audience than judges and juries. In the end,
that audience was the world.
A note on methodology: unlike many fine accounts of the ideas of the
American Revolution that mix and match quotations from dif fer ent times
and places, our account follows the internal logic of the primary sources
one at a time. As Bernard Bailyn wrote in his classic William and Mary
Quarterly review of the Oxford History of the British Empire, context is every-
thing. In our opinion, the context of each document s haped its language, and
thus demands that the documents be read and unraveled individually, in the
sequence in which they were composed.
A final word about collaboration— not the l awyers’, but the authors’ of
this book. The two of us have worked together for many years, as father and
son, as teacher and student, and for the past fifteen years, as coauthors. This
book was conceived and partially executed by Williamjames Hoffer, re-
drafted in rough form by Peter Charles Hoffer, and then polished by both
authors. The ideas and methodology in it have so long been discussed by the
two authors, that the precise origin of any portion of the manuscript can no
longer be ascribed to one or the other of them.
The authors are grateful to Michael McGandy, our editor at the press; his
assistant, Bethany Wasik; the two very generous outside readers for the press;
and Mary Ribesky, who guided Clamor from manuscript to book.
