David Hoffman of Baltimore: A Profile in Courage

Our Constitution guarantees a “republican form of government.” Alas, from my experience as a law professor, the meaning of “republican” appears opaque to most law students. To early generations of Americans, republicanism conveyed two clear and important concepts: one of “rights,” through popular sovereignty and governments of limited powers; the other of “responsibilities,” expressed through a civic virtue independent of popular passions. Both rights and responsibilities are in part activated through democratically adopted laws, of course (lois in French, or gesetz in German). However, without the constant teaching of higher law (Droit in French, Recht in German), the civic virtue required in a republic will wither and die a majoritarian death.1 Lawyers versed only in laws are mere technicians, while attorneys trained in a republican system where higher law predominates are the most noble of professionals.

One citizen who shared this belief and who helped shape republican culture was Maryland lawyer David Hoffman. Born in 1784, the eleventh of twelve children of Dorothea and Peter Hoffman (a prosperous Baltimore merchant), David attended the fledgling St. John’s College in Annapolis for three years before returning to Baltimore, where he “read law” (i.e., apprenticed with a practitioner) for three more years.

Hoffman & Sons Dry Goods had a London branch managed by two of David’s brothers. The firm needed legal help, so David’s choice of profession – he was the only son who declined to enter the family business – suited the family. By 1816, his lucrative practice in bustling Baltimore, the nation’s third largest city, netted him $9,000 a year, a very healthy sum by the standards of the day.

But David’s scholarly bent made him unhappy with commercial practice. In 1814, he made a decision that would eventually change his life: He accepted the part-time position of professor of law at the University of Maryland. At that time, no law courses were being taught in Maryland, where, as in most states, one acceded to legal practice exclusively through apprenticeship. Hoffman was convinced that his generation of practitioners had become too divorced from the philosophical debates of the nation’s founding to appreciate the vision of law – and of lawyering – required in America. He set aside first some, then most, of his professional time to develop the curriculum of the “Maryland Law Institute.” The product, his Course of Legal Study (published in 1817), was widely admired by America’s few legal educators. The Course eschewed what we would today call legal positivism or constructivism (that is, legal study restricted to the observation of actual, existing laws, posited by conventions, committees or legislatures).

“[W]e assume it as undeniable that pure Ethics and Natural Law lie at the very foundation of all laws,” the Course commenced.2 In Hoffman’s view, legal questions ultimately resolved themselves into moral issues; hence, jurists of the new republic must study history and philosophy to supply the timeless principles which supplement the laws and make precedents intelligible. Concerned solely with legal systems devised by fallible men, positivism could offer no such guidance.

Even more than for his insistence on substantive legal education, Hoffman became known for his protest against the debasement of ethical standards. This protest was a direct consequence of Hoffman’s insistence on the existence of “Natural Law” (an absolute ethical system, superior to any legislative action and recognizable by humans solely on account of their being endowed with rationality). Hoffman lived in an age when Jacksonian Democrats aspired to tear down the barriers to populism erected by the founders, and he greatly feared the atomistic “mob rule” that could result. As applied to lawyers, popular sovereignty was simply incompatible with the existence of objective duties. Hoffman resolved that the lawyers he educated should not serve as accessories to the moral relativism resulting from excessive democracy. In 1836 he published, as volume II of his Course of Legal Study, his Fifty Resolutions in Regard to Professional Deportment, which is today seen as America’s first code of legal ethics.3

Fifty Resolutions is remarkable for its unrelenting contention that representation of clients in no way absolves lawyers from the dictates of conscience. Resolution 33, reproduced above in the center of the page, insists on the existence of the good, independent of majority sentiment. Resolution 11 admonishes, “If, after duly examining a case, I am persuaded that my client’s claim or defense (as the case may be) cannot, or rather ought not, be sustained, I will promptly advise him to abandon it.”

Thus, Hoffman recognized that statutes of limitations had the legitimate purpose of encouraging plaintiffs to bring timely suits before defendants’ exculpatory evidence became stale. If his client acknowledged a plaintiff’s claim, though, Hoffman maintained in Resolution 41 that it was unethical for a lawyer to invoke a statute of limitations on the client’s behalf. Yet another resolution forbade lawyers to abuse their intellectual prowess by misleading jurors into accepting unsound arguments.

Hoffman’s outlook was strikingly different from that of the well known British essayist, Dr. Samuel Johnson (1709-1784), who responded to the question, “But what do you think of supporting a cause which you know to be bad?” with, “Sir, you do not know it to be good or bad until the Judge determines it.” Nor would the later U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. (term, 1902-1932) have met with Hoffman’s approval. Holmes’ cleavage of law from ethics – “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” – ushered utilitarianism into our courts. This would have been anathema to Hoffman.

In today’s judicial and legislative arenas, of course, Johnson, Holmes et al. have triumphed. Codes of “professional responsibility” abound. But these consist of positive laws, entailing state sanctions for disobedience. They have displaced canons of ethics. Compare Fifty Resolutions with the current American Bar Association’s Model Rules of Professional Responsibility. For the Model Rules, the universe’s moral ambiguity vindicates attorneys who act as results-oriented “hired guns.”4

For Hoffman, the existence of a knowable, higher truth obliged all officers of the court – including lawyers – to assist in its discovery. Under the ABA’s Model Rules, an attorney who refuses to invoke a statute of limitations in favor of a bad-faith debtor, or who declines to create an unsound but convincing syllogism, can be disbarred. If an act is legal, it has to be ethical. Thus, O.J. must be innocent because he was acquitted, etc. Yet most Americans, in their hearts, know that the ethical agnosticism underlying this legalism is deeply obnoxious. This gap between this legalism and the enduring
republican ethos of the American people generates much of the disrepute lawyers have today earned.

David Hoffman’s law school stagnated, the victim of underfunding and bureaucracy. Hoffman ceased teaching and wrote popular essays – or, more accurately, essays he vainly hoped would become popular. Noteworthy is this respect is “A Grumbler: Miscellaneous Thoughts on Men, Manner and Things.” This is a most readable tract in which he argued that “ultra democracy” was the cause of every evil in American life, from juvenile delinquency and marital infidelity to the “decline of high drama” and the “less refined tone of conversation.” He eventually moved to England, but came home in 1840 to campaign for “Tippecanoe and Tyler Too” (i.e., Whig presidential candidate William H. Harrison and his running mate, John Tyler). Harrison died shortly after his inauguration, and Tyler’s administration and those that succeeded it did nothing to cheer Hoffman’s spirits. He died in 1854, discouraged at the prospects for republican virtue in America.

Writing at a time when no professional self-discipline existed, Hoffman insisted that discipline must derive from the grounding of objective morals. Today, powerful bar associations provide discipline in a virtual moral vacuum. Most assuredly, David Hoffman’s name is obscure in most legal circles. But this situation is changing. A growing number of legal educators – led by, among others, Thomas Shaffer at Notre Dame University – is insisting that honest-to-goodness ethics be taught to lawyers again.

To this group, David Hoffman has emerged as the exemplar of the honorable
counselor and gentleman every lawyer should strive to be. Thanks to Hoffman’s legacy, our now-forlorn profession may one day again justify Alexis de Tocqueville’s characterization as “the most cultivated portion of society,…the American aristocracy.”

Mr. Krauss is a professor of law at George Mason University, Virginia. He is a Maryland resident, and a member of the Calvert Institute’s board of advisors. A shorter version of this article previously appeared in the Heritage Foundation’s Policy Review (July/August 1996).

End Notes

[Top] 1. See Michael I. Krauss, “Max Weber, Rationalism, and the Comparative Method,” Canadian Bar Review, Vol. 62 (1984), p. 451.

[Top] 2. David Hoffman, Course of Legal Study, Vol. I, 2nd ed. (1836), p. 1.

[Top] 3. David Hoffman, Fifty Resolutions in Regard to Professional Deportment, Vol. II of the Course of Legal Study, 2nd ed. (1836).

[Top] 4. See Anthony Kronman, The Lost Lawyer (Cambridge, Mass.: Harvard University Press, 1993).

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