1 Highlights of a surprisingly sparse literature on biography as a literary form include John A. Garraty, The Nature of Biography (New York: Garland Publishing, 1957) (“Garraty, Nature of Biography”); Daniel Aaron, ed., Studies in Biography (Cambridge, Mass.: Harvard University Press, 1978); David Novarr, The Lines of Life: Theories of Biography, 1880-1970 (West LaFayette, Ind.: Purdue University Press, 1986); Jeffrey Meyers, ed., The Biographer's Art (New York: New Amsterdam, 1989) (“Meyers, Biographer's Art”). On legal biography, see Botein, Stephen W., “Biography in Legal History,” 69 Law Lib. J. 456 (1976).Google Scholar

2 Samuel Johnson, Lives of the Poets (1779), and James Boswell, Life of Samuel Johnson (1791), are the first two landmarks of biographical modernity. Later ones include James Anthony Froude, Thomas Carlyle (New York: Scribner's, 1892); Sigmund Freud, Leonardo Da Vinci and a Memory of His Childhood (New York: Norton, 1910); Lytton Strachey, Eminent Victorians (London: Chatto & Windus, 1918); and Richard Ellmann, James Joyce (New York: Oxford University Press, 1959).Google Scholar

3 A phrase borrowed from Jeffrey Meyers, The Craft of Literary Biography 2 (London: Macmillan Publishing Co., 1985).Google Scholar

4 1 Samuel Clemens, Mark Twain's Autobiography 2 (rev. ed. New York: P. F. Collier, 1924). Lytton Strachey, among others, agreed: “It is perhaps as difficult to write a good life as to live one” (quoted in Meyers, The Biographer's Art 8). Even the great Charles Beard found the complexity of human personality so impenetrable that he dared never attempt a biography (Garraty, Nature of Biography 264).Google Scholar

5 See Mark D. Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841-1870 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1957), and The Proving Years, 1870-1882 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1963); Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw (Cambridge, Mass.: Harvard University Press, 1957); John Phillip Reid, Chief Justice: The Judicial World of Charles Doe (Cambridge, Mass.: Harvard University Press, 1967); William H. Harbaugh, Lawyer's Lawyer: The Life of John W. Davis (New York: Oxford University Press, 1973); William Twining, Karl Llewellyn and The Realist Movement (London: Weidenfeld & Nicholson, 1973); G. Edward White, Earl Warren: A Public Life (New York: Oxford University Press, 1982); R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985). One also should recognize in this context Maxwell Bloomfield's pioneering American Lawyers in a Changing Society 1776-1876 (Cambridge, Mass.: Harvard University Press, 1976) and Stephen Presser's study of Samuel Chase as a contributor to early Federalist jurisprudence in The Original Misunderstanding: The English, the Americans and the Dialectic of Federalist jurisprudence (Durham, N.C.: Carolina Academic Press, 1991).Google Scholar

6 Current work in progress awaited eagerly by legal biography fans includes Charles McCurdy on Stephen Field, Andrew Kaufman on Benjamin Cardozo, Gerald Gunther on Learned Hand, and Barbara Babcock on Clara Foltz. See, e.g., McCurdy, Charles W., “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897,” 61 J. Am. Hist. 970 (1975); Andrew L. Kaufman, “Mr. Justice Cardozo,”in Allison Dunham & Philip B. Kurland, eds., Mr. Justice (Chicago: University of Chicago Press, 1964); Gerald Gunther, “Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History,” 27 Stan. L. Rev. 719 (1975); Barbara Allen Babcock, “Clara Shortridge Foltz: ‘First Woman,’” 30 Ariz. L. Rev. 673 (1988).CrossRefGoogle Scholar

7 Professor Fritz (J.D. University of California-Hastings, Ph.D. University of California-Berkeley) teaches at the University of New Mexico Law School. His Hoffman is the first in a promising new series, “Law in the American West,” edited by John R. Wunder and published by the University of Nebraska Press.Google Scholar

8 Fritz's very first sentence introduces the recurring theme of Hoffman's exaggerated pride: “Understanding Ogden Hoffman and his judgeship requires an appreciation of his extraordinary pride” (at 1).Google Scholar

9 Exactly why Hoffman moved west is unknown. Fritz suggests it likely was a search for some combination of adventure, fortune, and solace from an unsuccessful courtship. Two years before his death, Hoffman described to Matthew P. Deady, his federal court colleague in Oregon, the great disadvantage he always had felt “playing on the provincial instead of the metropolitan stage” (at 49).Google Scholar

10 Hoffman received the appointment only after six others had either declined it or failed to win Senate confirmation. In the end, his father's political tie to Secretary of State Daniel Webster paid a dividend. See also Hall, Kermit L., “Mere Party and the Magic Mirror: California's First Lower Federal Judicial Appointments,” 32 Hast. L.J. 819 (1981).Google Scholar

11 When first appointed, Hoffman exercised both district and circuit court jurisdiction. Act of Sept. 28, 1850, 9 Stat. 521; see also Felix Frankfurter & James M. Landis, The Business of the Supreme Court 54 (New York: Macmillan Publishing Co., 1927). In 1855, however, Congress created a special circuit judgeship for California, which in 1863 it converted into the ninth Supreme Court position. Act of March 2, 1855, 10 Stat. 631; Act of March 3, 1863, 12 Stat. 94. To Hoffman's great and enduring dismay, President Lincoln appointed California Supreme Court Justice Stephen Field rather than Hoffman to the high court. On Field generally, see Charles W. McCurdy, “Stephen J. Field and the American Judicial Tradition,” in The Fields and the Law (San Francisco: United States District Court for the Northern District of California Historical Society; New York: Federal Bar Council, 1986); Carl Brent Swisher, Stephen. Field: Craftsman of the Law (Washington, D.C.: Brookings Institution, 1930). On Hoffman's constantly dispiriting relations with Field, see infra, text at notes 21-25.Google Scholar

12 The 3,000 private admiralty suits filed in Hoffman's court constituted 15% of his total, four-decade docket (Fritz, app., table 1). On expansive American admiralty law at midcentury, see generally The Moses Taylor, 71 U.S. 411 (1867); The Hine v. Trevor, 71 U.S. 555 (1867); Theophilus Parsons, A Treatise on the Law of Shipping and the Law and Practice of Admiralty (Boston: Little, Brown & LCO., 1869).Google Scholar

13 Hoffman also applied the infamous “fellow servant rule” to dismiss several early personal injury suits by sailors. He did propose once that the Supreme Court abolish that rule, but his own refusal to restrict its application differed noticeably from the more activist approach taken by his Oregon counterpart, Matthew Deady. See, e.g., Gilmore v. Northern Pac. Ry. Co., 18 F. 886 (1884) (Deady, J., declining to apply the fellow servant rule).Google Scholar

14 Fritz describes tellingly how both Hoffman and his juries seemed to follow a “hierarchy of command” (at 109–10). Captains were convicted less often and, if convicted, received lighter sentences than their officers, who in turn fared far better than common sailors. As an example, one officer convicted in 1854 of biting off a sailor's ear received only a three-month jail term, while any sailor convicted of attacking a captain or officer could expect as much as five years hard labor in the state prison.Google Scholar

15 E.g., Neutrality Act of 1818, 3 Stat. 447.Google Scholar

16 One notable sidelight of Hoffman's early criminal docket is the vast, unsupervised discretion that midcentury U.S. Attorneys exercised in deciding which cases, and how vigorously, to prosecute. Especially in distant California, they received little or no direction from Washington, D.C., until Congress created the Department of Justice in 1870. Such unsupervised discretion became a major irritant to Hoffman at times, particularly in criminal and public land law matters where he believed that U.S. Attorneys routinely neglected the public interest.Google Scholar

17 See, e.g., Mooney, Ralph James, “Formalism and Fairness: Matthew Deady and Federal Public Land Law in the Early West,” 63 Wash. L Rev. 317 (1988); see generally Paul W. Gates, Land and Law in California: Essays on Land Policies (Ames: Iowa State University Press, 1991); Roy M. Robbins, Our Landed Heritage: The Public Domain, 1776-1936 (Lincoln: University of Nebraska Press, 1942).Google Scholar

18 The 1846 Treaty of Guadalupe Hidalgo, 9 Stat. 922, together with the California Land Act of 1851, 9 Stat. 631, guaranteed that prior Mexican land grants within California would be “inviolably respected.” The Land Act established a board of commissioners to review all such alleged grants and board rulings could be appealed de novo to federal district court.Google Scholar

19 See Fremont v. United States, 58 U.S. 541 (1855). Hoffman's own Cervantes and Fremont decisions are unreported.Google Scholar

20 See, e.g., United States v. Cambuston, 61 U.S. 59 (1858); United States v. Teschmaker, 63 U.S. 392 (1860).Google Scholar

21 Hoffman, in turn, dashed Deady's hope for the appointment by wiring President Grant that he would consider it a “reflection if not an indignity” upon himself for Deady, his junior in years of service, to be promoted over him. Ultimately, California Supreme Court Justice Lorenzo Sawyer received the position. See Letter from Field to G. E. Whitney (16 Dec. 1869) (Deady Papers, Oregon Historical Society); Letter from Hoffman to Deady (22 Dec. 1869) (Deady Papers, Oregon Historical Society).Google Scholar

22 See Woodworth v. Fulton, 1 Cal. 295 (1850); Cohas v. Raisin, 3 Cal. 443 (1853); Hart v. Burnett, 15 Cal. 530 (1860). See generally McCurdy, Charles W., “Stephen J. Field and Public Land Law Development in California, 1850-1866: A Case Study of Judicial Resource Allocation in Nineteenth-Century America,” 10 Law & Soc'y Rev. 235 (1975). On Hart as a landmark in American public trust law, see Molly Selvin, This Tender and Delicate Business: The Public Trust Doctrine in American Law and Economic Policy 1789-1920 at 170-277 (New York: Garland Publishing, 1987).CrossRefGoogle Scholar

23 United States v. Bolton, 64 U.S. 341, 352 (1860).Google Scholar

24 One Hoffman decision that especially infuriated Field was his application of President Lincoln's December 1863 amnesty proclamation to three Confederate partisans convicted in Field's circuit court of treason for raiding federal gold shipments. Despite a telegram from Lincoln stating that he had not intended the proclamation to apply to such a case, Hoffman, as usual, interpreted the proclamation literally and released the gold raiders.Google Scholar

25 See San Francisco v. United States, 21 F. Cas. 365 (C.C.N.D. Cal. 1864); United States v. Circuit Judges, 70 U.S. 673 (1865); Act of March 8, 1866, 14 Stat. 4.Google Scholar

26 California statutes enacted in 1850 and 1851 barred blacks and Indians from testifying against whites in both criminal and civil cases. In People v. Hall, 4 Cal. 399 (1854), the California Supreme Court interpreted those acts to bar testimony by Chinese as well. There was “no doubt,” the court concluded, that the legislature intended to bar testimony by that “race of people whom nature has marked as inferior” and whose “mendacity is proverbial.” 4 Cal. at 405.Google Scholar

27 Non-Chinese defendants prosecuted during the 1860s for licensing or revenue violations, such as failure to pay a cigar-manufacturing tax, routinely pleaded guilty knowing they faced only a $1 fine. Chinese defendants, however, whether pleading guilty or convicted at trial, typically received $300 fines or 20-day jail terms. Even a decade later, between 1879 and 1883, nearly 70% of all revenue prosecutions were against Chinese, although by then Hoffman had begun to sentence convicted Chinese and non-Chinese more even-handedly (at 217).Google Scholar

28 In 1880, the United States and China modified their existing treaty relations to permit the United States to suspend further immigration of Chinese laborers. See 22 Stat. 827 (1880). The following decade, Congress enacted three increasingly restrictive Chinese Exclusion Acts. 22 Stat. 58 (1882); 23 Stat. 115 (1884); 25 Stat. 476 (1888). San Francisco port authorities sought to exclude as many Chinese as possible under those acts, and literally thousands of persons seeking entry filed habeas corpus petitions in Hoffman's court. The Oregon experience was similar, although it involved far fewer petitioners. See Mooney, Ralph James, “Matthew Deady and the Federal Judicial Response to Racism in the Early West,” 63 Or. L. Rev. 561 (1984); see also Przybyszewski, Linda, “Judge Lorenzo Sawyer and the Chinese: Civil Rights Decisions in the Ninth Circuit,” 1 West. Legaf Hist. 23 (1988).Google Scholar

29 One extraordinary instance of Field's extremism was In re Chew Heong, 21 F. 791 (C.C.D. Cal. 1884), in which, over dissents by Hoffman, Circuit Judge Lorenzo Sawyer, and District Judge George Sabine, Field denied reentry to a Chinese laborer who lacked a reentry certificate only because he had left the United States before the first exclusion act went into effect. The Supreme Court reversed 7-2. Chew Heong v. United States, 112 U.S. 536 (1884).Google Scholar

30 In one 1884 opinion Hoffman lamented, “For five or six weeks, even with night sessions, I have been unable to make any great impression on them. All ordinary business, public and private, of the court is necessarily suspended.” In re Chow Goo Pooi, 25 F. 77, 82 (N.D. Cal. 1884). Four years later, he was still “buried out of sight in Chinese habeas corpus cases,” suffering from “weeks and months” of “torture to mind and body.” Letter from Hoffman to Charles N. Felton, Jan. 1888, in Cong. Record, 50th Cong., 1st sess., 1888, p. 6569. Congress finally responded in 1888 by granting U.S. Commissioners power to hear the petitions. Act of Sept. 13, 1888, 25 Stat. 476, 479.Google Scholar

31 In 1884, Hoffman began to include in his opinions references to immigrant Chinese as people of “unscrupulous mendacity” and “fertile ingenuity,” who engaged in an “endless gamut of deceptions” (at 237). Still, even following enactment of the very restrictive 1888 Exclusion Act, Hoffman discharged a remarkable 86% of the 1,400 Chinese habeas corpus petitioners (at 246).Google Scholar

32 Many 19th-century federal judges, who often served alone in their districts, experienced relatively isolated professional existences. Hoffman, however, carried such isolation to an extreme, refusing as late as 1891 even to attend a dinner honoring his 40 years of judicial service: to attend, he replied, would not be “in good taste … while occupying a judicial position” (at 48).Google Scholar

33 See Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little, Brown & Co., 1960). Other less explicit early work on judicial decision-making styles includes Arnold M. Paul, Conservative Crisis and the Rule of Law (New York: Harper & Row, 1960); Clyde E. Jacobs, Law Writers and the Courts (New York: Da Capo Press, 1954); and Robert G. McCloskey, American Conservatism in the Age of Enterprise 72-126 (Cambridge, Mass.: Harvard University Press, 1951).Google Scholar

34 See, e.g., Duncan Kennedy, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940,” 3 Res. L. & Soc. 3 (1980); Morton J. Horwitz, The Transformation of American Law 1780-1860 (Cambridge, Mass.: Harvard University Press, 1977); Grant Gilmore, The Ages of American Law 41-67 (New Haven, Conn.: Yale University Press, 1977); Nelson, William E., “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” 87 Harv. L. Rev. 513 (1974). For at least partially contrary views, see Harry N. Scheiber, “Instrumentalism and Property Rights: A Reconsideration of American ‘Styles of Judicial Reasoning’ in the 19th Century,” 1975 Wis. L. Rev. 1; Karsten, Peter, “A Kinder, Gentler Instrumentalism,” 10 Law & Hist. Rev. 45 (1992).CrossRefGoogle Scholar