Pub Date : 2018-12-31DOI: 10.7591/9781501726088-003
{"title":"Chapter 1. “The Worst Instrument of Arbitrary Power”","authors":"","doi":"10.7591/9781501726088-003","DOIUrl":"https://doi.org/10.7591/9781501726088-003","url":null,"abstract":"","PeriodicalId":217492,"journal":{"name":"The Clamor of Lawyers","volume":"227 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131530931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-31DOI: 10.1515/9781501726088-010
{"title":"A Note on Sources","authors":"","doi":"10.1515/9781501726088-010","DOIUrl":"https://doi.org/10.1515/9781501726088-010","url":null,"abstract":"","PeriodicalId":217492,"journal":{"name":"The Clamor of Lawyers","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128429006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-15DOI: 10.7591/CORNELL/9781501726071.003.0005
P. Hoffer, W. Hoffer
Between 1773 and 1775, lawyers who favored resistance shifted from arguments that looked like common law pleading to hybrids, part legal, part political. Content followed form, as they cast off from the familiar shores of English liberty to chart a course through what modern jurists have called rights talk. In the process, the revolutionary lawyers did not abandon the common law entirely but used legal modes of reasoning 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. One should be careful in dealing with terms here. “Rights talk” is now a staple of liberal jurisprudence associated with Civil Rights advocacy, while conservative jurisprudence is primarily concerned with private property rights. The revolutionary lawyers did not divide these topics—they saw personal liberty and the sanctity of private property as part of the same cause.
{"title":"Chapter 4. “A Right Which Nature Has Given to All Men”","authors":"P. Hoffer, W. Hoffer","doi":"10.7591/CORNELL/9781501726071.003.0005","DOIUrl":"https://doi.org/10.7591/CORNELL/9781501726071.003.0005","url":null,"abstract":"Between 1773 and 1775, lawyers who favored resistance shifted from arguments that looked like common law pleading to hybrids, part legal, part political. Content followed form, as they cast off from the familiar shores of English liberty to chart a course through what modern jurists have called rights talk. In the process, the revolutionary lawyers did not abandon the common law entirely but used legal modes of reasoning 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. One should be careful in dealing with terms here. “Rights talk” is now a staple of liberal jurisprudence associated with Civil Rights advocacy, while conservative jurisprudence is primarily concerned with private property rights. The revolutionary lawyers did not divide these topics—they saw personal liberty and the sanctity of private property as part of the same cause.","PeriodicalId":217492,"journal":{"name":"The Clamor of Lawyers","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121102664","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-15DOI: 10.7591/cornell/9781501726071.003.0007
P. Hoffer, W. Hoffer
Almost evenly divided in numbers and talent at the start of the crisis, in 1782 the revolutionary bar and the loyal bar faced vastly different futures. The revolutionary lawyers had stepped into the role of constitution drafters and lawgivers. Their lives, fortunes, and honor were enhanced by their part in the Revolution. Having a “vested interest in making sure the new nation succeeded” they fashioned an American republican law, a concept of public engagement, adorned with categories of fundamental liberties and rights that had great capacity for expansion. Though originally confined to a narrow band of the citizenry, time, sacrifice, and a growing sense of inclusiveness would, eventually, expand a male, white, entrenched, and propertied governing class to include women, people of color, working people, and newcomers. A second achievement was a little more self-serving. The revolutionary lawyers’ participation in the new confederated and state governments set a pattern, a precedent if you will, of a public role for lawyers outside of the courts. When a new generation of lawyers passed the bar and began practicing,...
{"title":"Conclusion","authors":"P. Hoffer, W. Hoffer","doi":"10.7591/cornell/9781501726071.003.0007","DOIUrl":"https://doi.org/10.7591/cornell/9781501726071.003.0007","url":null,"abstract":"Almost evenly divided in numbers and talent at the start of the crisis, in 1782 the revolutionary bar and the loyal bar faced vastly different futures. The revolutionary lawyers had stepped into the role of constitution drafters and lawgivers. Their lives, fortunes, and honor were enhanced by their part in the Revolution. Having a “vested interest in making sure the new nation succeeded” they fashioned an American republican law, a concept of public engagement, adorned with categories of fundamental liberties and rights that had great capacity for expansion. Though originally confined to a narrow band of the citizenry, time, sacrifice, and a growing sense of inclusiveness would, eventually, expand a male, white, entrenched, and propertied governing class to include women, people of color, working people, and newcomers. A second achievement was a little more self-serving. The revolutionary lawyers’ participation in the new confederated and state governments set a pattern, a precedent if you will, of a public role for lawyers outside of the courts. When a new generation of lawyers passed the bar and began practicing,...","PeriodicalId":217492,"journal":{"name":"The Clamor of Lawyers","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114256461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-15DOI: 10.7591/cornell/9781501726071.003.0006
P. Hoffer, W. Hoffer
Even if the Declaration were a legal document announcing the independence of the United States, according to revolutionary constitutional theory no independent state could exist without fundamental law, in this case a constitution of some sort that was ratified by the people. The Revolutionaries agreed that constitutions must precede and empower governments, or the fundamental rule of consent of the governed could not be followed. Congress did not have such a foundation. The last paragraph of the Declaration thus served as a miniature prototype constitution until such time as a more substantial document could be prepared and ratified. The powers that the Declaration gave to the United States, to wage and conclude wars, regulate commerce, and all the other powers that independent states “may of right do” were the very definition of sovereignty. As it happened, they were the most valid factual claims the Declaration made, for Congress were already doing all of them.
{"title":"Chapter 5. “That These Colonies Are . . . Free and Independent States”","authors":"P. Hoffer, W. Hoffer","doi":"10.7591/cornell/9781501726071.003.0006","DOIUrl":"https://doi.org/10.7591/cornell/9781501726071.003.0006","url":null,"abstract":"Even if the Declaration were a legal document announcing the independence of the United States, according to revolutionary constitutional theory no independent state could exist without fundamental law, in this case a constitution of some sort that was ratified by the people. The Revolutionaries agreed that constitutions must precede and empower governments, or the fundamental rule of consent of the governed could not be followed. Congress did not have such a foundation. The last paragraph of the Declaration thus served as a miniature prototype constitution until such time as a more substantial document could be prepared and ratified. The powers that the Declaration gave to the United States, to wage and conclude wars, regulate commerce, and all the other powers that independent states “may of right do” were the very definition of sovereignty. As it happened, they were the most valid factual claims the Declaration made, for Congress were already doing all of them.","PeriodicalId":217492,"journal":{"name":"The Clamor of Lawyers","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116979734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-15DOI: 10.7591/cornell/9781501726071.003.0004
P. Hoffer, W. Hoffer
By 1774, events were pushing the lawyers to take sides whose lines of division could not be crossed. Nor could even the best connected of lawyers straddle these lines. One had to choose. Still, the lines that defined revolutionary and loyalist lawyering were only drawn in shifting sands. Had Parliament conceded some measure of colonial autonomy and had the revolutionary leadership been more patient with English policies, the crisis could have been averted or at least held at bay. But both sides seemed unwilling to acknowledge what continued intransigence would bring.
{"title":"“My Dear Countrymen Rouse Yourselves”","authors":"P. Hoffer, W. Hoffer","doi":"10.7591/cornell/9781501726071.003.0004","DOIUrl":"https://doi.org/10.7591/cornell/9781501726071.003.0004","url":null,"abstract":"By 1774, events were pushing the lawyers to take sides whose lines of division could not be crossed. Nor could even the best connected of lawyers straddle these lines. One had to choose. Still, the lines that defined revolutionary and loyalist lawyering were only drawn in shifting sands. Had Parliament conceded some measure of colonial autonomy and had the revolutionary leadership been more patient with English policies, the crisis could have been averted or at least held at bay. But both sides seemed unwilling to acknowledge what continued intransigence would bring.","PeriodicalId":217492,"journal":{"name":"The Clamor of Lawyers","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116896917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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