Learned Hand and the Writing of History

Judge Learned Hand's opinion as a district judge in Myers v. Mail & Express Co., 36 Copyright Office Bulletin 478 (S.D. N.Y. 1919) reads in part:

[N]ot only are all the facts recorded in a history in the public domain, since the narration of history must proceed chronologically,—or at least, such is the convention,—the order in which the facts are reported must be the same in the case of a second supposed author. There cannot be any such thing as copyright in the order or presentation of the facts, nor, indeed, in their selection, although that selection may go the highest genius of authorship, for indeed history depends wholly upon a selection from the undifferentiated mass of recorded facts.

Judge Hand's comments reflect a naïve and blinkered understanding of how history is written, and shows that even the great falter on occasion. The passage is full of categorical statements (“the narration of history must proceed chronologically”; the “order in which the facts are separated must be the same in the case of a second author;” “there cannot be any such thing as copyright in the order of presentation of facts;” “history depends wholly upon a selection from the undifferentiated mass of recorded facts”) offered with no support, and overwhelmed by copious evidence from actual histories and writings by historians about the writing of history (historiography). few writers of any kind can produce a readable work without some kind of “plot” or “theme.” As Lawrence Stone wrote: “Thucydides's theme was the Peloponnesian Wars and their disastrous efforts upon Greek society and politics; Gibbon's the decline and fall of the Rome empire; Macaulay's the use of a liberal participatory constitution in the stresses of revolutionary politics.” Even if, in the case of histories, we feel more comfortable with the term narrative, no narrative can be, as Hand suggested, a self-defining, self-selecting, self-ordering aggregation of facts. Professor M.C. Lemon wrote in “The Structure of Narrative,” in The History and Narrative Reader at 108 (Geoffrey Roberts ed. 2001):

[A] chronicle is a kind of calendar. It lists events (or other data) in the order of their dates. For example, one could produce a list of every Act of Parliament ordered (sequentially) according to their dates, or one could chronicle the offspring of a family over the generations. Insofar as their succession of time is the sole principle underlying their manner of presentation, it would appear continuity is the essence of the matter in the construction of a chronicle—and if so, then the chronicle is the narrative in its starkest, hence purest, form. But of course this is not the case. A chronicle's “continuity” is merely abstract, superimposed by the purely formal rationale of the numerical ordering of dates; it is a meaningless continuity. Put formally, the chronicle is structured in terms of “this (then) that,” whereas the narrative is structured in terms of “this then that.” In the narrative form, the “then” has a peculiar, distinctive significance, which transforms a successor of events into a meaningful sequence.

All this leads to three recent, very interesting books and one interesting article on the writing of histories. The first book is John Burrow’s book, published on April 8th, fabulously entitled “A History of Histories: Epics, Chronicles, Romances and Inquiries from Herodotus and Thucydides to the Twentieth Century,” available for $29 at amazon.com. Professor Burrow, an English scholar, has written what might be a "history of ideas", or intellectual history. Professor Burrow relies heavily on the work of others. His is a synthetic effort where the value is in the telling of the tale, the tale being the writing of histories. he is an entertaining writer who assumes no knowledge of the subject. One passage I was struck by is the italicized portion on page 115, about the Roman writer Appian, a younger contemporary of Plutarch:

“There has been disagreement about how far Appian was a mere compiler of other men’s work. It is possible to say with certainty, for example, that his account of Catiline’s conspiracy derived heavily from Sallust, but in general the ancient habit of mentioning source only in cases of disagreement makes it impossible to be sure.”


As I noted in an earlier blog about originality and earlier views on plagiarism, Thomas DeQuincy, in the mid-19th century, vociferously accused others of plagiarism, but he regarded the following three activities as not plagiarism: “(1) when the author improved on the work of the original; (2) when the second author has borrowed from a work so well that known that a well-read reader may be expected to credit the original source; (3) when the borrowing had been unconscious.” It seems that the modern (by which I mean sarcastically within the last ten years or so) view of copying and when one must give attribution is quite against the weight of history.

My favorite of Professor Burrow's discussions are those of the Greek historians Herodotus and Thucydides, each of whom he gives fond attention to and whom he profitably contrasts. Lovers of those two historians are blessed with new books on each historian. David Mendelsohn, a humanities professor at Bard College has a review of the Herodotus book in the April 28th New Yorker. Professor Mendelsohn’s article is a fun read. Both he and Burrow chose to mention this nugget from Herodotus’ well-known digressions (that is, Herodotus’s descriptions of the manners and customs of the Egyptians, Persians and Babylonians in Book II of his history of the Persian Wars (490 to 479 B.C.E.)). The Egyptians, Herodotus wrote “seem to have reversed the ordinary practices of mankind” by “eating in the streets and relieving themselves indoors … the men urinating sitting down, the women standing up, and so on.” (quoted in Burrow page 25). Burrow adds this bon mot, “After recording that the Persians never acted on a decision taken when drunk without reconsidering it when sober, one can see that it was irresistible [for Herodotus] to add that a decision taken sober was always reconsidered when drunk.” If details like these don't make one want to take up Herodotus, nothing will.

The book Professor Mendelsohn was reviewing in The New Yorker was “Landmark Herodotus: The Histories” ($29 from amazon.com) published on November 6, 2007, 952 pages, edited by Robert Strassler (an unaffiliated scholar) and with a new translation by Andrea Purvis. Professor Mendelsohn is quite critical of the translation, finding it “naked and pedestrian,” two descriptions that in this case perhaps are not the most felicitous when conjoined. Lacking any knowledge of Greek (and I don’t know if Professor Mendelsohn knows Greek either; he was a journalist before becoming a humanities professor), I have to pass on his judgment, but he is otherwise highly complimentary about the book and it is easy to see why. The book is copiously annotated with maps, photographs, timelines, numerous footnotes, and scholarly references that greatly assist one on comprehending this quite long war.

The second book, “The Landmark Thucydides: A Comprehensive Guide to the Peloponnesian War,” issued April 1, 2008, is a revised edition (the first one was done ten years earlier). It too is $29 at amazon.com, is 706 pages, is also edited by Mr. Strassler, and has an introduction by Professor Victor Hanson, a professor of Greek at Fresno State University, California. (No translation credit is given that I could find). The format is the same as the Landmark Herodotus, and it has the same very high quality. It is a shame Professor Mendelsohn didn’t discuss the Thucydides book; perhaps that will be his next essay.

Both books are in hardcover. The Thucydides is published by Free Press, a division of Simon & Schuster. The Herodotus is published by Pantheon Books after Free Books turned it down. They both are extremely handsome books. With a price of $29 from amazon (list is $45), they are an amazing value. I proudly own both and despite their weight schlep them (one at a time) on airplanes where they help pass away the time during inevitable flight delays. Both books pay put to Hand’s view of history as well as to the idea that hard copy, mainstream books are a thing of the past. Both books are extraordinary accomplishments. Bravo to all involved.