The Clamor of Lawyers: The American Revolution and Crisis in the Legal Profession by Peter Charles Hoffer and Williamjames Hull Hoffer
When the American colonists began to protest the Proclamation of 1763 and its limits on westward expan sion, colonial lawyers were at the forefront. As an exasperated General Thomas Gage explained to England: "the lawyers are the source from which the clamours have flowed in every province" (10). In The Clamor of Lawyers, Peter Charles Hoffer and Williamjames Hull Hoffer use Gage's complaint as a starting point to argue that colonial lawyers were not just participants in the imperial crisis but also its architects. Although these revolutionary lawyers did not start out seeking "radical change of any kind," the Hoffers argue that "they followed the logic of their dissent, and failing to convince the crown and Parliament, over time turned from dissent to open protest" until "further Parliamentary schemes . . . spawned obstruction and then resistance." This culminated in "a movement for independence that no one at the start of the crisis anticipated or wanted" (5). In the process of responding to the crisis as it unfolded, these lawyers not only invoked legal ideas and forms for protest but also altered and re-created those forms for a new American nation.
The lawyers' pattern of dissent first unfolded in the representation of particular clients. The Hoffers begin by flashing back to New York's John Peter Zenger's trial for seditious libel (1735); Massachusetts's Paxton's Case, involving writs of assistance (1761); and Virginia's Maury v. Parish of Fredericksville, related to the Privy Council's disallowance of a Virginia law setting clergy salaries (1762). In these early cases, the authors argue that counsel laid the foundation for the types of broad, creative arguments that would emerge during the revolutionary crisis. Most significantly, colonial lawyers invoked general legal principles to counter the force of straightforward statute law or imperial power.
Then in 1763–64, the administration of George Grenville rolled out its program to curb colonial independence and raise revenue (especially through the Sugar Act of 1764 and the Stamp Act of 1765), and what had begun in the courtroom became widespread political protest. At this stage, according to the Hoffers, "common law pleaders naturally turned to common-law forms of thinking and writing to promote their cause" (47). But this time, the protesting lawyers did so not in court but by publishing political pamphlets directed to a wide audience. These pamphlets, the authors suggest, made arguments based on the English Constitution and were essentially briefs in pamphlet form. [End Page 571]
The problem with submitting briefs, the Hoffers note, is that sometimes you lose your case. So when Parliament reiterated its supremacy and passed the Townshend Acts—which were particularly alarming because they embedded the intention to raise revenue within old forms—the lawyers were forced to contemplate what it meant to step "beyond dissent and protest to action" (67). But what gave them the authority not merely to protest but to affirmatively obstruct laws passed by Parliament? Here, the authors turn to John Dickinson's Letters from a Farmer in Pennsylvania, and in a fascinating section argue that Dickinson solved this problem by effectively treating Parliament's power in a judicial, rather than legislative, manner. Legislatively, Parliament's proponents asserted that whatever that sovereign body did was the law, but the Hoffers argue that Dickinson recast that power, looking at previous parliamentary enactments as one might parse case law. In doing so, Dickinson found a consistent history of statutes passed to regulate trade among the parts of empire, with the recent Stamp Act constituting a deviation from the practice of promoting fair interchange. According to the Hoffers, Dickinson and others were moving toward a "colonial constitutional law," one against which deviating acts would be considered "null and void" (73).
After the Boston Tea Party provoked an imperial crackdown, the colonial opposition moved from obstruction to active resistance to imperial power, and the revolutionary lawyers' arguments did too. Now the lawyers began to deny Parliament's authority over the colonies altogether and "to transform the common law from a body of precedent to an abstract ideal of what good law should be, a kind of meta-law" (85). This transformation included, most significantly, rethinking notions of sovereignty, particularly in the noteworthy examples of Thomas Jefferson's Summary View and John Adams's Thoughts on Government. By 1776, according to the Hoffers, both Jefferson and Adams had relocated the only true source of law to the consent of the governed; as the Hoffers put it, the historic "tie that bound the common law to royal authority was cut" (117).
Finally, in the Second Continental Congress, the revolutionary lawyers declared independence and began to plan the new American nation. Now advocates became lawmakers, and pamphlet writers became bureaucrats. Because of their leadership, the run-up to the American Revolution had been lawyerly, and the discourse that emerged in the new nation was too. "The resulting paradox—rebellion justified in the name of law—tested and reinforced," the Hoffers argue, "the strength of Americans' commitment to law and encouraged Americans' quest for new and more representative methods of lawmaking" (9). A new regime of republican law emerged—with lawyers on top.
But in the process, the Hoffers assert, the revolutionary lawyers' beliefs had changed. The process of making legal arguments in the tumult of the [End Page 572] imperial crisis had provided a pressure cooker that forced the revolutionary lawyers to forge new ideas about law, liberty, and constitutions—ideas that would come to characterize the emerging American nation. In the 1760s, at the beginning of the imperial crisis, they had sought protection through elucidation: through spelling out what the law was. But by the mid-1770s, according to the Hoffers, they viewed liberty as a protected sphere, "an area around the individual into which government might not penetrate" (139). They now also focused on consent and natural law and thought of "constitutions not as emanating from governments but as the fundamental source of all government . . . without which no government could legitimately exist" (6–7).
Overall, The Clamor of Lawyers offers a provocative paradigm for reconsidering the American Revolution. The Hoffers convincingly argue that it was a lawyers' revolution, with lasting consequences for the character of the American nation. They explain at the outset that "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" (2). Their basic claim is deeply intriguing: that, during the back-and-forth of the imperial crisis, the lawyers participated in ways formed by their professional identities and ultimately found themselves rethinking the nature of law itself.
But the Hoffers' account leaves some lingering questions. First, is it possible that, rather than rethinking law and constitutionalism, the American colonists were merely working within a different conception of the English constitution—a pluralistic understanding, or perhaps an older one? In this vein, The Clamor of Lawyers would have benefited from deeper historiographical engagement, especially with the work of legal historian John Phillip Reid, who has argued that colonial protests—even mob actions—were part of a broad understanding of English constitutionalism.1 Similarly, the rise of parliamentary supremacy is a crucial factor that receives too little attention in the book.2 Colonial understandings may well have been changing, as the Hoffers argue, but metropolitan ones were too. [End Page 573]
Second, the book's account of a smooth progression of colonial ideas seems too neat. As generations of historians have demonstrated, the American revolutionaries famously and liberally drew from older materials and arguments—whether the pamphlets of the Commonwealth period or thinkers such as John Locke; Charles de Secondat, baron de Montesquieu; and others whom Jefferson (one of the Hoffers' paradigmatic examples) carefully excerpted in his legal commonplace book during this critical time.3 The Hoffers would undoubtedly respond that although the materials and ideas existed, the choice of which concepts to borrow and rely upon changed as the crisis unfolded. Though this might be true, changing selection is different from the creation of new ideas; moreover, references to natural law and related concepts—which the Hoffers see as the culmination of the revolutionary lawyers' ideological progression—seem to have appeared in earlier stages too, including in the various arguments of colonists Richard Bland and James Otis Jr. (discussed at length in chapters 1 and 2 of the book). There was perhaps more continuity than the authors' narrative allows.
Finally, more mundane issues also detract from the Hoffers' important contributions. For instance, statements such as that liberty emerged as "an area around which the government might not penetrate" (139) often fail to receive the lengthier development they require. At other points, the authors make awkward, anachronistic analogies to modern legal concepts and movements.4
For these reasons, one at times gets the feeling that The Clamor of Lawyers does not quite do justice to its own deep insights and penetrating arguments. But those insights remain real and lasting. The Hoffers have written a book that is by turns idiosyncratic and thought-provoking. It is also a significant contribution to understanding the American Revolution and the origins of American law. [End Page 574]
1. John Phillip Reid, "In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution," New York University Law Review 49 (1974): 1043–91. See also Reid, "'In Our Contracted Sphere': The Constitutional Contract, the Stamp Act Crisis, and the Coming of the American Revolution," Columbia Law Review 76 (1976): 21–47. The Hoffers mention Reid's work briefly, but their argument would have benefited from additional substantive engagement.
2. The Hoffers cite William Blackstone as an authority, without adequate attention to the fact that his volumes were not widely distributed in the colonies until late in the imperial crisis and that in America his rendering of parliamentary supremacy was seen as both recent and highly controversial. For an excellent treatment of Blackstone's influence (and lack thereof), see Martin Jordan Minot, "The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries," Virginia Law Review 104, no. 7 (November 2018): 1359–97.
3. Bernard Bailyn, The Ideological Origins of the American Revolution, enlarged ed. (Cambridge, Mass., 1992); Thomas Jefferson, Jefferson's Legal Commonplace Book, ed. David Thomas Konig and Michael P. Zuckert (Princeton, N.J., 2019).
4. For example, the Hoffers describe Jefferson as believing "that the process of making laws should be open and fair" and conclude that "today this is called 'process theory'" (102). They describe James Otis Jr. as offering an "originalist" approach by looking into "the intent of the framers" (31) of the writs of assistance in his argument in that case and see Joseph Galloway as presaging Justice William Brennan's twentieth-century "living constitution" (90) theory of constitutional interpretation when Galloway proposed a plan for colonial union in 1774. Such comparisons are problematic without fuller explanation and argument.