David Konig: Reflections on Bernard Bailyn and Legal History

David Konig

David Konig is Emeritus Professor of History and a member of the Law Faculty at Washington University in St. Louis.

Bernard Bailyn would probably be as amused as gratified by reflections on any distinction between his impact on Anglo-American legal history and the transforming influence of his other scholarship.  The words “law” or “legal” do not appear in the title of any of his published writings and in only one doctoral dissertation before his retirement in 1991.[1]  Anyone who has studied with him, however, can find in his early work the–dare we appropriate the term?–origins of his thinking about colonial legal history as one of many valuable perspectives on what he referred to as “the entire process by which a culture transmits itself across the generations.”[2]  In 1956 he accepted an invitation to write an essay reviewing books on Carl Becker and Charles McLean Andrews, which he used as “an opportunity to consider, in part, at least, where we have been in search of colonial origins and where we may be heading.”[3]  His assessment of Andrews is particularly pertinent to the present essay for its penetrating judgments on a historian who had learned—and taught—“to respect as the prime subject for historical investigation the evolution of public institutions.”  Even so, Bailyn added–almost apologetically, given his enormous esteem for Andrews–that his own “generation finds its starting point in what it considers to be the limitations of its predecessors’ work.”[4] 

Andrews’s work, despite Bailyn’s praise, was no exception.  In explaining his criticism, he laid out the contours of his own, alternate approach to early American history.  In it he referred only obliquely to legal history, but, in retrospect he was presenting the methodology that would transform the field.  

The deficiencies in Andrews’ image flow from the fact that he was essentially a formalist, indeed, a legalist. He did not study all institutions, but only those that have some life in law or that relate to the formal organization of public life.  His sources were primarily official documents, state papers, and legal records.[5]  

Bailyn then pivoted to offer a one of the critical “deft jabs” that his students came to expect in his seminar.[6]  “But formal structures are never self-sufficient,” he insisted.  “What gave life to those that Andrews studied, what made them work, was a subtle array of informal institutions with no necessary expression in law or government.”  “Institutional history of Andrews’ type we must always have,” Bailyn acknowledged.  “But new interest lies in deepening the dimension of study into the regions of society where life is infused into rigid legal forms, where the law itself is molded.”[7] 

This blueprint had an impact on colonial American legal history no less profound than on any  other subfield.  Its far-reaching influence would be recognized when John Murrin, reviewing five books on the New England town in 1972, observed, “Much (perhaps most) of the current interest in colonial demography derives in one way or another from the highly suggestive introductory essay to his Education in the Forming of American Society: Needs and Opportunities for Study.[8]  In that short book, which appeared in 1960, Bailyn offered a trenchant critique directed at the history of education, a field that had developed “in a special atmosphere of professional purpose” and taken shape in “almost total isolation from the major influences and shaping minds of twentieth-century historiography.”[9]  The field would produce creative historical writing, Bailyn advised, only by assuming “a broader definition of education and a different notion of historical relevance,” and “when one sees in education its elaborate, intricate involvements with the rest of society, and notes its shifting functions, meanings, and purposes.”[10]  

Equally suggestive was the “Foreword” to his Pamphlets of the American Revolution” in 1965, when he elaborated on a point he had made in Education.  Reading more than four hundred pamphlets published before 1776 had convinced him of “the intimate relationship between Revolutionary thought and the circumstances of life eighteenth-century America that endowed the Revolution with its peculiar force and made it a transforming event.”[11] The pamphlets’ “General Introduction” became Ideological Origins of the American Revolution in 1967, a year before The Origins of American Politics added to the significance of a pre-Revolutionary focus on the political—and, inferentially, legal—process of change that had taken place beneath the more obvious public events as a “substratum” of latent development.[12]  The colonial period was ripe for creative revision because it lacked the interpretively distracting “manifest events,” the episodes of major political conflict, presidential elections, or Supreme Court decisions that had dominated legal history scholarship, and away from the more interpretively powerful “latent” events, the “mundane exigencies” that “had been matters of fact before they were matters of theory and revolutionary doctrine.”[13]  Conventional legal history, as he saw it, suffered from the same misconception about historical change that he found in the increasingly arid debate over the Revolution as “republican” or “liberal.” In the Revolution he found continuities and “no sharp break” from “republican” to “liberal.”  “That formulation of sudden switches in such a short period of time never made sense to me,” he asserted firmly.  “I don’t think it happened that way, though some historians, especially legal historians, insist that it did,” in their ahistorical efforts to “refute modern conservatives’ `original intent’ arguments.”[14]

 By that time, however, legal history had undergone a transformation.  A year ago the editor of this blog commented on the remarkable growth and sophistication of “The Newest Legal History,” which, he wrote, “has dramatically moved in new and exciting directions to such an extent that it is barely recognizable” from the bench and bar focus of the past.[15]  Legal history by then had become part of the shift toward what Bailyn had been prescribing for decades, embodying the ideas of “historians whose writing shifted  the direction of historical inquiry not by exhortation but by substantive and enduring discovery.”  Their work illustrated the “ingredients that are necessary in some measure for all creative efforts in history, and perhaps in other fields as well.”[16]  He found them in the work of four exemplary “contextualists,” historians with four different specializations who “sought to understand the past in its own terms: to relocate events, the meaning of documents, the motivations of historical actors in their original historical setting.”  What they shared in common was  

the capacity to locate, control and absorb very large quantities of hitherto unused or underused data. In every case it was the immersion in a mass of new or freshly examined data that allowed them to think creatively.  All of them seemed by some remarkable accident (but of course it is no accident) to fall into a mass of fresh archival material.”[17]

Note the unobtrusively interjected qualifier: but of course it is no accident.  In retrospect, as I try to locate in Bailyn’s teaching the “ingredients” that have transformed legal history, I now recall what I took at the time to be a casually tossed off remark in a conversation about what I’d like to write about in my dissertation.  As I rose to leave, he remarked that I might be interested in the contents of eight volumes of county court records of Essex, Massachusetts, covering the half century from the establishment of the court in the 1630s into the 1680s.[18]  His advice: take a look at what’s in them, immerse yourself in their world as you find it, and try to identify any interesting patterns of change over time.  Such an inquiry—which in his seminar usually took the form of a question, “How do you get a handle on this material?”[19]–was more easily proposed than executed: each volume ran to more than 400 pages filled with a community’s conflicts and complaints, all laid out and recorded in unselfconscious detail by laymen unacquainted with legal niceties before magistrates trying to reconcile neighborly antagonisms as traditional communal and ecclesiastical mechanisms of dispute resolution and social ordering were slowly and often imperceptibly proving inadequate to the needs of their changing world.  Plaintiffs and defendants recalled neighborly antagonisms—some reaching back decades–in revealing detail as they steadily turned from neighborly arbitrators or church leaders to secular magistrates, from Biblical injunctions to common law or statute.

Other than Nelson’s seminal 1971 dissertation, little existed in colonial legal history that followed Bailyn’s prescription for historical understanding of an institution’s “elaborate, intricate involvements with the rest of society, and … its shifting functions, meanings, and purposes.”  Typical subjects of colonial legal history when Bailyn began his graduate study in 1946 were the “sudden shifts” of doctrinal or institutional change he had criticized in Revolutionary political history.  Take, for example, the famous case of Sherman v. Keayne, an otherwise unexceptional lawsuit “about the title to A straye Sowe”[20] which became a landmark case in colonial legal history.  Surviving documents from this suit for conversion abound with facts of social history that today would leap off the page and command numerous paths of inquiry.  Nevertheless, its social context had remained peripheral, leaving its significance and meaning unchanged for more than three centuries: “It is as the mother of Senates that Goody Sherman’s sow has achieved immortality,” wrote two modern commentators in 1947.  “For what was settled … was that the Colonial legislature, like Parliament, was to be bicameral.”[21]

Goodwife Sherman’s sow may have “mothered the solid constitutional doctrine which is still our inheritance,”[22] but the arbitrators chosen to settle the dispute, “are said to have `most sensibly permitted the thing to die of its folly.’”[23]  Bailyn’s teaching has steered us away from the case of Goody Sherman’s sow with its the celebration of the birth of “the mother of Senates,” and toward a systematic analysis of the hundreds of everyday cases like that of “old Goodman Lummas,” who in 1683 sued a fellow townsman for damages when his hog “came creeping home on three legs, with a broken thigh.”[24]  Such a case, when seen in the aggregate with hundreds of other mundane legal actions, reflected a fundamental reordering of society by innumerable individuals acting through the agency of law and legal institutions.  It was an example of the social behavior he described in his 1981 presidential address to the American Historical Association as “making possible a new range of inquiry into what might be called latent events—that is, events that contemporaries were not fully aware of, at times were not aware at all, events that they did not consciously struggle over, however they might have been forced unwittingly to grapple with their consequences.”  For legal history, as for other subfields in the ever-expanding discipline of historical writing,  this “integration of latent and manifest events” continues to demonstrate Bernard Bailyn’s lasting contributions to what he hoped would be “one of the most important developments in modern historiography.”[25]  

[1] In 1971, Perspectives in American History, a series edited by Bailyn and Donald Fleming for the Charles Warren Center for Studies in American History, published a collection of essays in its Volume V as “Law in American History.”  Neither editor contributed to the volume.  The dissertation was William E. Nelson’s “The Americanization of the common law during the Revolutionary era: a study of legal change in Massachusetts, 1760-1830” (1971).  It goes without saying that Bailyn and his students produced brilliant transformative scholarship on the formal discourse of constitutional law and its relation to what he described as “the concept of `ideology,’ which draws formal discourse into those `maps of problematic social reality,’ those shifting patterns of values, attitudes, hopes, fears, and opinions through which people perceive the world and by which they are led to impose themselves upon it.”  “The Central Themes of the America Revolution. An Interpretation,” first published in Essays on the American Revolution, ed.Stephen G. Kurtz and James H. Hutson(Chapel Hill, 1973), 3-31 (quotation at 11). That monumental corpus will be dealt with by other scholars in this issue of The Docket.  The present essay will be concerned with “legal history” in the particularized sociological sense of “law” and its relationship to other aspects of society. 

[2]  Education in the Forming of American Society. Needs and Opportunities for Study (New York, 1960), 14.

[3] “Becker, Andrews, and the Image of Colonial America,” New England Quarterly, 29 (1956), 522.

[4] Id., 530-31, 534.

[5] Id., 531.

[6] See the recollection of this experience by Michael Kammen and Stanley N. Katz, “Bernard Bailyn, Historian and Teacher. An Appreciation,” in the Festschrift volume, The Transformation of Early American History. Society, Authority, and Ideology, ed. James A. Henretta, Michael Kammen, and Stanley N. Katz  (New York, 1991), 13.

[7] “Becker, Andrews,” 531-32.

[8] John Murrin, “Review Essay,” History and Theory, 11 (1972), 228.  Education was presented in 1959 at a conference organized by the Institute of Early American History in Williamsburg, and published in 1960.

[9] Education, 8-9.

[10] Id., 8-9, 14.

[11] Pamphlets of the American Revolution (Cambridge, MA, 1965)

[12] The Origins of American Politics, 98-101.

[13] Gordon S. Wood, captures this point and other features of Bailyn’s creativity in “The Creative Imagination of Bernard Bailyn,” in Henretta, Kammen, and Katz, Transformations, 16-50. An early application of this distinction can be found in Bailyn’s “Political Experience and Enlightenment Ideas in Eighteenth-Century America,” American Historical Review, 67 (1962), 339-51.

[14] A. Roger Ekirch, Sometimes an Art, Never a Science, Always a Craft: A Conversation with Bernard Bailyn,” William and Mary Quarterly, 3rd ser., 51 (1994), 649.

[15] Gautham Rao “Friends in All the Right Places: The Newest Legal History” The Docket,  2, #4 (Dec 2019).  https://lawandhistoryreview.org/article/friends-in-all-the-right-places-the-newest-legal-history/ (accessed 17 October 2020).

[16] “History and the Creative Imagination,” a lecture delivered at Washington University in St. Louis and published in 1985, republished in his Sometimes an Art. Nine Essays on History (New York, 2015), 81. 

[17] Id., 95-96. The four were Andrews, Perry Miller, Sir Lewis Namier and Ronald Syme.

[18] Records and Files of the Quarterly Courts of Essex County, Massachusetts [1636-1683] (8 vols., Salem, MA, 1911-21), ed. George Francis Dow.  An eighth volume, continuing the records through 1686, was published in 1975.  The manuscript records for those years were on deposit with the rest of the court’s archives at the Essex County Courthouse in Salem.  The 1973 dissertation, “Social conflict and community tensions in Essex County, Massachusetts, 1672-1692,” became the basis for Law and Society in Puritan Massachusetts. Essex County, 1629-1692. (Chapel Hill, 1979).

[19] For a reflection on this pedagogy, see Kammen and Katz, “Historian and Teacher,” 13.

[20] Arthur Prentice Rugg, “A Famous Colonial Litigation. The Case Between Richard Sherman and Capt. Robert Keayne, 1642,” Proceedings of the American Antiquarian Society, 30 (1920), 231.  The defendant was the subject of Bailyn’s illuminating treatment in The Apologia of Robert Keayne: The Self-Portrait of a Puritan Merchant, first published in Colonial Society of Massachusetts Transactions, 1952-56 (1964), 243-341.

[21] Mark DeWolfe Howe and Louis F. Eaton, Jr., “The Supreme Judicial Power in the Colony of Massachusetts Bay,” New England Quarterly, 20 (1947), 293.

[22] Id., 291.

[23] Rugg, “Famous Colonial Litigation,” 221.

[24] For this episode, along with the events leading up to it, see Essex Records and Files, 8: 1-2.

[25] Bernard Bailyn, “The Challenge of Modern Historiography,” American Historical Review, 87 ((1982), 10-11.