Sally Hadden: Reflections on Bernard Bailyn

Sally Hadden is Associate Professor of History at Western Michigan University.  She is the author of Slave Patrols: Law and Violence in Virginia and the Carolinas (Harvard University Press, 2003).  Professor Hadden previously served as the National Secretary of the American Society for Legal History.

As a doctoral student of Bernard Bailyn’s, I experienced firsthand his laser-like focus and penetrating analysis in every conversation we had, both in seminar and out. Our discussions covered past and present, from the use of spectral evidence in Anne Hutchinson’s Antinomian trial in early Massachusetts to Peter Weir and Australian cinema. Over nearly thirty years, those conversations revealed the surprising directions that research took us. Bailyn once described to me the historian’s (sometimes chaotic) work in the archives as “rummaging”—which always carried the possibility of unforeseen finds. Fortune favored the industrious; many times I encountered him in Widener Library’s lower levels, pulling another book he needed from the shelves. Serendipity, hard work, and sharp intelligence enabled Bailyn to leave an indelible impression upon early American legal history.

For a scholar who was not a legal historian by training, Bailyn had a remarkable influence upon Anglo-American legal history, through his publications, his editorial work, and the careers of his students. Bailyn’s earliest writings focused upon economic, social, and political history. His linked interests in merchants and political hierarchies led to The Apologia of Robert Keayne (1964), an edited version of the will of a Puritan merchant. Keayne’s 50,000 word testament went far beyond requests, legatees, and bequeathing wealth to the next generation. Bailyn returned to the will in his final book, Illuminating History, devoting a chapter to unpacking Keayne’s motivations and his use of a ritual—the reading aloud of a will—to be heard from beyond the grave by those who had made his life a misery.[1]Bailyn cleverly showed how the will revealed one Puritan merchant’s struggle for acceptance within that community, and by implication, how that community policed acceptable and unacceptable behavior.

Bailyn’s edited collection of pamphlets from the American Revolution (1965) and the subsequent Ideological Origins of the American Revolution (1967) recast interpretations of the Revolution on a sweeping scale, a familiar assessment of his best-known scholarly achievement. Shrugging off the standard Progressive interpretation that dominated textbooks and classrooms for over a generation, Bailyn rejected that purely economic assessment of the revolutionary generation and demanded that they be taken at their word—that they were, in fact, moved by philosophical considerations to take up arms against England. Bailyn’s reshaping of early American political history meant that every legal document from the period was then ripe for reinterpretation—the Articles of Confederation, state constitutions, the U.S. Constitution, and Bill of Rights would all need sober reconsideration. His many students would take up that work.

Less well known among Bailyn’s prodigious output is the editorial work he performed for Perspectives in American History from 1967 to 1976, working with Donald Fleming. To broaden “the scope of American historical writing” the editors wanted to move beyond the “usual political and social subjects.”[2] In Perspectives, Bailyn could devote whole issues to historical fields. In 1971, that meant nearly 700 pages on American legal history, featuring essays by J. Willard Hurst, Morton Horwitz, Harry Scheiber, Stanley Katz, David Flaherty, Jerold Auerbach, and others. Bailyn’s curation of this collection reads like a who’s who of the field. Many essays presaged groundbreaking works to come: Horwitz offered “The Emergence of an Instrumental Conception of American Law, 1780-1820,” a glimpse of his 1977 monograph The Transformation of American Law, 1780-1860.[3] Scheiber examined the power of state courts to wield eminent domain as a weapon, a theme he pursued in dozens of history articles scattered among economic, business, agriculture, and law journals.Flaherty previewed material on morals policing that appeared in 1972 when he published Privacy in Colonial New England.[4]Auerbach limned the relations between law professors and practitioners, a subject explored in greater depth in Unequal Justice (1976).[5] Bailyn’s talent-spotting ability was strong: the assembled essayists included four assistant professors (Horwitz, Flaherty, Auerbach, and John Elliff) who had only just begun to make their mark in the scholarly world. Little, Brown deemed the contents of Perspective’s special issue on legal history valuable enough that they republished the volume in its entirety as a monograph.

Bailyn’s mentorship of younger scholars included supervising more than sixty doctoral students to completed dissertations. Without question, Bailyn trained the largest cadre of early American legal historians of any academic in his generation. In their dissertations, they rewrote our basic conceptualization of state constitutions (Gordon Wood), women and constitutional thought (Mary Beth Norton), jury power (William Nelson), citizenship (James Kettner), Puritan justice (David Konig), the Continental Congress (Jack Rakove), and transatlantic constitutionalism (Mary Sarah Bilder and Daniel Hulsebosch). Their later works covered every major aspect of early American legal history, including important lawsuits like the Zenger trial (Stanley Katz), slave law (Sally Hadden), criminal justice (Peter Hoffer), the Ratification debates (Pauline Maier) or enlarged our access to original trial records through important editing projects (Konig, Bilder, and Hoffer). These intellectual “children” have in their turn directed so many theses and dissertations that Bailyn’s legal history “grandchildren” now dot the scholarly landscape, and this does not even include the many individuals Bailyn mentored via the Atlantic World seminar, including the sessions upon the theme “Justice” in 2010. As a living legacy, Bailyn’s influence upon the field of early American legal history reaches far and continues to expand.

[1] Bernard Bailyn, Illuminating History: A Retrospective of Seven Decades (New York: W. W. Norton, 2020).

[2] Donald Fleming and Bernard Bailyn, “Editors’ Statement,” Perspectives in American History 1 (1967): 5.

[3] Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge MA: Harvard University Press, 1977).

[4] David H. Flaherty, Privacy in Colonial New England (Charlottesville: University of Virginia Press, 1972).

[5] Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976).