The Clamor of Lawyers: The American Revolution and Crisis in the Legal Profession

By Peter Charles Hoffer and Williamjames Hull Hoffer

The Clamor of Lawyers explores a series of extended public pronouncements that British North American colonial lawyers crafted between 1761 and 1776. Most, though not all, were composed outside of the courtroom and detached from on-going litigation. While they have been studied as political theory, these writings and speeches are rarely viewed as the work of active lawyers, despite the fact that key protagonists in the story of American independence were members of the bar with extensive practices. The American Revolution was, in fact, a lawyers’ revolution.

Peter Charles Hoffer and Williamjames Hull Hoffer broaden our understanding of the role that lawyers played in framing and resolving the British imperial crisis. The revolutionary lawyers, including John Adams’s idol James Otis, Jr., Pennsylvania’s John Dickinson, and Virginians Thomas Jefferson and Patrick Henry, along with Adams and others, deployed the skills of their profession to further the public welfare in challenging times. They were the framers of the American Revolution and the governments that followed. Loyalist lawyers and lawyers for the crown also participated in this public discourse, but because they lost out in the end, their arguments are often slighted or ignored in popular accounts. This division within the colonial legal profession is central to understanding the American Republic that resulted from the Revolution.

• Language: English
• Publisher: Cornell University Press
• Release date: Oct 15, 2018
• ISBN: 9781501726095

Peter Charles Hoffer

Peter Charles Hoffer is distinguished research professor of history at the University of Georgia.

Book preview

THE CLAMOR OF LAWYERS

The American Revolution and Crisis in the Legal Profession

PETER CHARLES HOFFER AND WILLIAMJAMES HULL HOFFER

CORNELL UNIVERSITY PRESS

ITHACA AND LONDON

CONTENTS

Preface

Introduction

1. The Worst Instrument of Arbitrary Power

2. The Alienation of the Affection of the Colonies

3. My Dear Countrymen Rouse Yourselves

4. A Right Which Nature Has Given to All Men

5. That These Colonies Are … Free and Independent States

Conclusion

Notes

A Note on Sources

Index

PREFACE

This book explores a series of extended public pronouncements that British North American colonial lawyers crafted from 1761 through 1782. Most, though not all, were composed outside of the courtroom and detached from ongoing litigation. Although these writings and speeches have been long studied as political theory, they are rarely viewed as the work product of active lawyers—this despite the fact that key protagonists in the story of American independence 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 principles. In the nineteenth century, the American side of the story was cast as the progress 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 Revolution (1854) phrased it, was but the symptom and the forerunner of a new creation. By contrast, Thomas Babington Macaulay, the greatest of English nineteenth-century historians, thought the American Revolution no revolution at all—merely a vindication of the highest ideals of the English constitution. Other observers, like the legal reformer Jeremy Bentham, had little good to say of the self-interested clamour of lawyers, who preferred arcane formulas to good common sense.

This book takes up the challenge of John Phillip Reid’s immensely valuable 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 important than ever.

Neither a loose coalition 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 lawyers would serve, as they saw themselves as servants of the higher good of patriotism, but then so did the lawyers 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 independence. 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 century in the struggle 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 opposition lawyers, 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 opposition 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. Revolutionary lawyers was our final choice, though surely that was an anachronism, for even the most fervent supporters of independence among them were not revolutionary until near the end of the crisis. Even then, the majority 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 lawyers.

The lawyers 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 surrounding and occasioning them—also shaped the writings. Finally, each man’s own experience and background influenced how he saw events. The arena in which these 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 different 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 everything. In our opinion, the context of each document shaped 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 lawyers’, 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, redrafted 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.

INTRODUCTION

A Lawyers’ Revolution

One of the more instructive ironies of the American Revolution’s history is that the ideal of a government of laws, and not of men originated with a lawyer who violated solemn oaths, raised rebellion against his sovereign, and brought about a revolution in government. As shocking a contradiction as this may seem, when John Adams coined the phrase he did not see anything illicit in his conduct. Quite the contrary. In his Defense of the Constitutions of the United States, penned in 1778 during his stay abroad as a diplomatic representative of the Continental Congress, he told his readers that good lawyers had saved the American people from miserable servitude … where the law is uncertain or unknown. He was convinced that England’s decline into that uncertainty of moral turpitude would have dragged America with it, had not lawyers, like Adams, stepped forward to save civic virtue. These revolutionary lawyers, including Adams’s idol James Otis Jr., Pennsylvania’s John Dickinson, and Virginians Thomas Jefferson and Patrick Henry, along with Adams and others deployed the skills of their profession to further the public welfare in crisis times. They were the framers of the American Revolution and the governments that followed.

The words of these lawyers are part of American Scripture and the lawyers sit in the pantheon of the Founding Fathers. Here we argue that it is a mistake to forget that before and while they were political leaders, they were practicing counsel. The way that people earn their bread leaves deep traces in the way they explain themselves to one another and to posterity. The lawyers’ years of practice, and the habits of thinking and pleading they mastered as part of that practice, influenced how they approached the crisis and how they fabricated the new nation’s idea of law.

Loyalist lawyers and lawyers for the crown participated in this public discourse. Because they lost out in the end, their arguments are often slighted or ignored in popular accounts. If in fact the two sets of colonial counselors talked past one another in increasingly shrill exchanges, the point of view of the lawyers who pleaded for patience and obedience should not be dismissed. Until the final hours before the breach was unbridgeable, lawyers for the crown side of the case hoped that they could present a winning justification for their position.

In 1763, British subjects in its North American Empire were still celebrating a triumph of arms. Two years before, British and American forces had wrested control of the St. Lawrence River from the French and all but ended the French and Indian War. With hostilities winding down, negotiators were meeting in Paris to discuss the terms for peace. In cities from Boston to Charles Town citizens toasted the king, set off bonfires, and listened to cannonades in the harbors. The war’s end left many American colonists feeling more British, prouder of their membership in the great Protestant empire, than ever before. The colonists expected the treaty to open the western lands to settlement—a bounty of riches for veterans of the war and land hungry farmers, not to mention a legion of land speculators. Lawyers joined in the celebration, as the resumption of peace would bring the return of normal commercial activities. While they might be, in the words of Lieutenant Governor Cadwallader Colden, insolent and petulant they were also as well skilled in the chicaneries of law as might be found anywhere in the colonies. Lawyers in New York City certainly benefitted from peace. War cut back business in the courts, save perhaps for the litigation of prize cargoes taken from enemies at sea by privateers; peace brought back trade, and disputes over commercial transactions and western land speculation were the meat and potatoes of the legal profession.¹

Some among the authorities in Westminster and Whitehall had other ideas. They did not credit, or even respond to, American concerns about postwar policy for the colonies. The British decision to hold on to Canada and the TransAppalachian lands rather than the French sugar islands whetted the colonists’ dreams of rapid expansion to the West. But the crown’s Proclamation of 1763 barred settlement on the far side of the mountains. Colonial land speculators felt cheated of the promised reward for their sacrifices during the war. As Indian agents and commissioners began to arrange a new round of treaties with the Indians the would-be real estate entrepreneurs stewed. In 1765, General Thomas Gage, commander of His Majesty’s forces in America, reported that the lawyers were behind the unrest. As he wrote from his headquarters in New York City to Whitehall, the lawyers are the source from which the clamours [against the Proclamation line] have flowed in every province.²

While colonial lawyers lamented their lost business, legal advisers to the crown agreed with the incoming government of Prime Minister George Grenville that some reform of the imperial system was necessary. Grenville was a lawyer for five years before he entered Parliament in 1741, primarily concerned with his family’s legal affairs, and not surprisingly he sought a legal solution to the problem of public insolvency. The answer was a law-and-order program. In this, he was fully in accord with officials like Alexander Wedderburn, the solicitor general and protégé of John Stuart, Lord Bute, King George III’s close adviser, and Edward Thurlow, the solicitor general prior to Wedderburn. All shared the view that organized resistance to the crown and Parliament in the colonies was illegal. New laws, strictly enforced, would not only produce a revenue (the crown treasury was emptied by the cost of the war), they would end the notorious corruption of the old imperial system. Grenville resolved that there would be no more colonial merchants buying off customs officials or colonial assemblies bringing penurious royal governors to their knees by refusing to pay their salaries. To be sure, sincere and energetic ministers had floated other reform plans after earlier colonial wars and they had come to naught, but this time, Westminster was determined that there would be no tampering with imperial law.³

Grenville explained the program to the public in a longish pamphlet titled The Regulations Lately Made Concerning the Colonies, and the Taxes Imposed upon Them, Considered (1765). Although the pamphlet focused on the economic advantages to the colonies of the new measures, Grenville did not neglect the legal foundation of them: Care must be taken to remove all obstructions which may arise from the regulations [of the empire] that were established at a time when [the acquisitions from France, as a result of the Treaty ending the French and Indian War] were not in contemplation. The Empire was significantly enlarged by the acquisition of Canada, the Floridas, and the Indian territories to the west of the Appalachians. Parliament had the right and the duty to legislate for these lands, and that right included the authority to raise funds for the defense of the newly enlarged frontiers. The dependence of the colonies on the mother country was a matter of law as well as common interest. The problem was that lawyers in the center of empire like Grenville did not recognize that the view of law in the peripheries of the empire had profoundly changed since the early 1750s, when an earlier version of these reform packages was proposed. It was a shortsightedness the rulers of the empire would soon regret.⁴

Often overlooked is the fact that Grenville’s plan relied on new statutes rather than improvements in administration and application of existing law. One might expect this from the leader of the king’s Parliamentary majority, but recourse to statutory reform was still something of a novelty in British politics as well as British law. Ironically, the model for this was the imposition of a grueling criminal code—the so-called black laws—that made simple pilfering, for example the picking of pockets, into serious crimes. The notion was the reduction of street crime by imposing punishments so terrifying, and illustrating those punishments in public executions, that potential criminals would be deterred from future crimes. In fact, this reform of the criminal law failed miserably of its object. But Grenville’s generation of law reformers had faith in the persuasive power of stern statutes.⁵

American lawyers’ response to Grenville’s program of reform was, to his surprise, generally negative. These members of the bar did not fully credit the legal basis of the legislation Grenville proposed. To be sure, colonists routinely complained to one another, to their local elected officials, and to friends in and out of power in the Metropolitan center of empire about a wide variety of grievances. Complaining about policies and their enforcement was a deeply engrained feature of Anglo-American political culture. In these cases, law and politics were so closely entwined, for law and politics both went into patronage and favoritism on both sides of the Atlantic, but the complaints against the new statutory regime were of a different order. The more openly suspicious of the lawyers worried that Grenville’s legislative program was the opening wedge of a plot against American liberties. These lawyers were not Revolutionaries in the sense commonly understood today. They did not seek radical change of any kind. Instead, they followed the logic of their dissent, and failing to convince the crown and Parliament, over time turned from dissent to open protest. Further Parliamentary schemes in response to the colonial protests spawned obstruction and then resistance. Resistance segued into a movement for independence that no one at the start of the crisis anticipated or wanted.⁶

The evolving role of the revolutionary lawyers in this political enterprise was both complex and crucial. The eighteenth-century colonial lawyer was as unlikely a revolutionary as one could find. As historians have documented, rural poor, city laborers, and a host of others were far more inclined to challenge authority in the decade before open hostilities with Britain began. By contrast, the lawyers were more likely to be conservative in their instincts and hesitant to raise riot. What is more, lawyers were not always trusted by their neighbors, law being reviled by some as a groveling, mercenary trade practiced by men only a little above the criminals some lawyers defended.⁷

The revolutionary lawyers’ role was difficult because to them fell the task of making mobs in the streets and extralegal assemblies appear to be lawful. John Adams recalled, with some distaste, how he had to meet with radicals like Tom Dawes in a sail loft to plan town politics. Revolutionary lawyers like Adams sought to regain some measure of control over the popular protest and at the same time make the case for redress to their opposite numbers in England. Adams and the other revolutionary lawyers naturally began by looking for and adopting ideas of legitimate resistance already available in the legal and political literature. What they could find in their libraries and what they saw in front of their eyes, however, soon pressed them to find ground on which their own opposition might be based. As the political controversy became a fundamental challenge to law and order, these lawyers sought a way in which they might hold a polity together that seemed to be tearing itself apart. Political tracts were fertile sources, but the law was these men’s real attachment, and in law—the techniques of legal argument and the canon of advocacy—they hoped to find what they needed.⁸

One by-product of the lawyers’ involvement was a dampening of the inherent radical tendencies of the protestors. Historians have produced abundant evidence of the crucial role ordinary colonists played in the protest. But it is clear that the Revolution did not result in profound social changes. Political changes there were, many of which empowered people who had little role in government prior to the crisis, but the social structure of the postwar republics was not greatly different from the prewar period. Those who aspired to power in the new nation were forced to respond to popular movements and personal challenges. Men like John Adams may have felt some unease, even been haunted by these demands, but in the end it was men like Adams who wrote the constitutions for the new states and men like Adams whom the ordinary people turned to for leadership. Conservatives, merchants and the landowners, as well as their lawyers, gained the upper hand as the war came to a close. More ambitious and complex social and personal goals remained elusive. The firestorm of radicalism, if it had ever been more than a few temporary blazes, had burned itself out, and the lawyers overhauled the ashes.⁹

Thus the lawyers’ revolution was not a social one, but one of ideas. The English common law, a body of judicial opinions along with lay and professional commentators’ essays on the law, contained bits and pieces that revolutionary lawyers in the colonies could excerpt and re-assemble into a plan for resistance to Parliament. This was not easily done, however. The conventional view of the English Constitution, best summarized by Bishop Charles Inglis’s True Interest of America Impartially Stated (1776), quoting Viscount Bolingbroke, was that assemblage of laws, customs, and institutions which form the general system according to which the several powers of the state are distributed in which the supreme power is distributed in the best manner. Rights were part of and inseparable from the existing system of government. It was only within this system, as William Blackstone, the foremost eighteenth-century authority on the English constitution, told readers of the first volume of his magisterial Commentaries on the Laws of England (1765), that political or civil liberty is the direct end of [the English] constitution. As arguments tied in this fashion to concessions of the authority of Parliament failed, the revolutionary lawyers in America came to think of constitutions not as emanating from governments but as the fundamental source of all government, preceding and limiting it, and without which no government could legitimately exist. That was their greatest achievement, and from it a new era of constitutional government would flow.¹⁰

True, with the aid of hindsight and access to all of these English and earlier colonial materials, the well-read colonial lawyer might arrive at the American rights-based constitutionalism in a single stroke. After all, had not John Locke and other political theorists during the seventeenth century said as much? To be sure, Locke was not a lawyer, but he was the permanent houseguest of Anthony Ashley Cooper, Lord Shaftesbury, Chancellor of England and one of its foremost lawyers. As John Phillip Reid, perhaps the foremost modern authority on the argument for resistance, has written, Rights were taken seriously in the eighteenth-century British Empire. Nevertheless, it is because the English and American ideas of constitutionalism became so profoundly different in this era that a more nuanced account would find that the idea of a legal basis for opposition to Parliament and the crown wandered through a public and private exchange of ideas, and only under the pricking of Parliamentary and Loyalist counterarguments and royal indifference, did the case for opposition take final shape. Legal historian William Nelson has summarized the key shift: real power rested not in the hands of British soldiers or officials, but in the hands of local lawyers and local judges.… As long as those lawyers and judges, along with the people they governed, remained convinced that the English freedom they enjoyed was protected by the common law and guaranteed by their being part of the British Empire, they would constitute no threat to the metropolitan authorities or their legates in the colonies. When that conviction was shaken, however, the opposition bar would form and become a potent force for protest and finally for independence.¹¹

Still, one might object that what seems to be a halting and unplanned evolution of increasingly novel ideas of self-government was from its inception actually a circular one, the revolutionary lawyers knowing all along that they were looking for a rationale for separation from Britain. Loyal lawyers like Peter Oliver, former chief justice of the Superior Court of Judicature of the Massachusetts Bay Colony, thought so. In an account of the rebellion completed in 1781, Oliver opined that James Otis Jr., perhaps the foremost lawyer in the colony and certainly its leading opponent of British policy, had plotted the severing of all ties as early as 1761. Devoid of all principle and joined by a cadre of notorious smugglers and other crooks, Otis allegedly brought down hell itself on the colony. Once graced with the liberty and charter grant of an extended country under the auspices of the English government, and protected by it, Massachusetts law and order fell to pride, ambition, and resulted of a few abandoned demagogues. Ironically, the revolutionary propagandist Thomas Paine agreed with Oliver that independence was the aim of the protestors from the start, though he viewed it as the work of good men in a great cause. "Necessity, like