Professional Documents
Culture Documents
Weiner
Law in Art
Melville's Major Fiction and Nineteenth
Century American Law
PETER LANG New York ∙ San Francisco ∙ Bern Frankfurt am Main ∙ Berlin ∙ Wien ∙ Paris
iii
Library of Congress CataloginginPublication Data
Weiner, Susan, Law in art: Melville's major fiction and nineteenthcentury American law / Susan
Weiner.
p. cm. (American university studies. Series XXIV, American
literature; 26)
Includes bibliographical references. 1. Melville, Herman, 18191891KnowledgeLaw. 2. Law
United StatesHistory and criticism. 3. Law in literature. I. Title. II. Series: American university
studies. Series XXIV, American literature; vol. 26.
PS2388.L36W4 1992 813'.3dc20 9132453
ISBN 0820416339 CIP
ISSN 08950512
Die Deutsche BibliothekCIPEinheitsaufnahme
Weiner, Susan: Law in art: Melville's major fiction and nineteenthcentury American law / Susan
Weiner.New York; Berlin; Bern; Frankfurt/M.; Paris; Wien: Lang, 1992 (American university
studies: Ser. 24, American literature; Vol. 26) ISBN 0820416339
NE: American university studies / 24
The paper in this book meets the guidelines for permanence and durability of the Committee on
Production Guidelines for Book Longevity of the Council on Library Resources.
© Peter Lang Publishing, Inc., New York 1992
All rights reserved.
Reprint or reproduction, even partially, in all forms such as microfilm, xerography, microfiche,
microcard, offset strictly prohibited.
Printed in the United States of America.
iv
For Bill, Monica, and Miriam
v
Contents
Acknowledgements ix
1. Introduction 1
2. Typee: An
Early Look at
the Relationship
Between
Literature and
Law 11
3. WhiteJacket:
or the World of
Ordered
Conflict 35
4. MobyDick:
Imaginative
Discourse as a
Challenge
to Legal
Discourse 53
5. Pierre: The
Novel and Legal
Formalism 75
6. "Bartleby":
Representation,
Reproduction
and
the Law 91
7. "Benito
Cereno" and the
Failure of Law 113
8. Law,
Literature, and
the Space
Between:
The Case of Billy
Budd 139
Notes 167
Index 189
vii
Acknowledgements
I want to thank Harrison Hayford, Harriet Gilliam, and Carl Smith for their critical reading of the
manuscript. Their wit and wisdom have been invaluable. I also am deeply grateful to Harrison
Hayford for his continual support and encouragement which enabled me to finish this project. With
his guidance I have been able not only to weather the Cape, but, I hope, to sail on.
I have also thrived through the devotion of my family. Their loving support has made all the
difference.
Finally, I wish to acknowledge the memory of Maxine Weiner, whose strength still abides.
ix
Law in Art
xi
Chapter 1
Introduction
The fiction of Herman Melville offers many possibilities to the reader. The purpose of this book is
to consider Melville's central works in regard to their treatment of and concern with legal issues of
paramount importance during his time. To do this has meant to refrain from doing many other
things. It has meant reading Melville in such a way as to exclude a direct discussion of religion,
philosophy, or psychology, but not to be unmindful of them. It has meant a narrow focus upon one
specific area, law, to try to illuminate aspects of the literary works that, until recently, have not been
treated in detail or in a developmental way. But while narrowness of focus may, of necessity, reduce
the scope of vision, it can also reveal a depth that was not immediately apparent. It is my hope that
from this perspective a new dimension of his work may emerge.
Chapter 1 introduces possible origins of the law/literature interconnection in Melville's imagination.
While critics have acknowledged this relationship in his later explicit "legal fictions," the link
between the two realms actually begins earlier, with the dedication of his first book to Judge Shaw.
Familial and financial support ultimately become factors the young author must supplant in order to
create his literary identity. In addition, Melville's contrast of native and civilized societies reflects
the change in American law from a natural law tradition to an instrumental concept. The world of
Typee becomes a touchstone by which to measure the losses incurred by the requirements of an
expanding marketplace economy.
Chapter 2 focuses upon the structure of nineteenthcentury industrial society that resulted from
changes within the legal realm. The shipboard hierarchy becomes a metaphor for the rigidity and
injustices exacerbated by the legal system. The problem of unjust
1
laws is raised. Must one obey them? Is violence the only recourse or can law remedy itself? White
Jacket seems to evade the radical critique it implies.
Chapter 3 continues and extends the examination of Melville's concern with law. I discuss the extent
to which legal decisions in the areas of race and labor relations may have indirectly influenced his
creation of his nonwhite characters. But I also argue that as tensions over slavery mounted,
Melville became increasingly critical, not only of specific legal injustices, but of the system of law
itself. His growing skepticism regarding legal methodology led him to emphasize the authority of
the imagination over the authority of law. Thus fictional narrative is tested against legal narrative as
an alternative method of finding and asserting truth. In MobyDick, narrative triumphs over the
power of legal discourse.
After the triumph of narration in MobyDick, Melville reveals a growing pessimism about the ability
of law to peacefully resolve conflicts which it often engenders. This negativity is embodied in
highly formalistic literary texts. Chapter 4 examines how Melville's concern with the split between
the ideal and the real finds its counterpart within the legal sphere. Melville may have been
influenced by formalistic legal decisions regarding slavery, and he may have adapted features of
legal formalism within his novel, Pierre. But while legal formalism sought to uphold the power of
the status quo and simultaneously to mask its political aspect, Melville's literary formalism
undermines the dominant power structure by selfconsciously calling attention to its own fashioning.
Thus law no longer seems natural and inevitable, but constructed and political. While I argue that
Melville works from Pierre through Billy Budd become increasingly formalistic, I also contend that
they thereby become increasingly political. Literary formalism need not represent a withdrawal from
the historical world, but may instead be a radical engagement with it.
Chapters 5 and 6 discuss Melville's growing skepticism regarding the ability of law to redress
grievances in times of conflict, and his increasing concern with the nature of literary discourse,
legal discourse, and their relationship to one another. Chapter 5 examines the interconnection of
representation, reproduction, and law. It draws upon the emerging art of photography as another
form of copying, which, like law, reproduces an image of man. Outward
2
representation comes to be taken as the thing itself, just as the law comes to stand for the abstract
ideal supposedly embodied within it. The exactness of the legal copies creates belief in a solid
principle at the core. The fate of Bartleby attests to the limitations of this attempt.
Chapter 6 again questions the capacity of law to resolve the legal problem of slavery and further
examines how the legal system actually intensifies the conflict it seeks to redress. Legal reasoning is
seen as a mode of perception that, despite its claims to objectivity and neutrality, is political in
nature. The process by which legal narratives are established reveals the altered nature of all sources
because each official version of events may contain gradual and manipulated changes. Thus "Benito
Cereno" extends the implications of "Bartleby." Alteration replaces reproduction, but the result is
the samethe masking of the class bias underlying our established belief systems.
Chapter 7 serves as a recapitulation of Melville's radical critique of the legal system. I argue that
although Billy Budd, Melville's last novel, is pessimistic in its outcome, it is also, in a sense,
hopeful, and it is his return to fiction that reveals that hope. The closed legal case of the handsome
sailor is contained within an open literary form, thereby offering imaginative interpretation as an
alternative to legal judgment. By juxtaposing these two forms of discourse, and by forcing the
reader to enter into the text through interpretation, Melville is offering an active challenge to the
constricting power of law. By attempting to free literary discourse from some of the compelling
aspects of legal discourse, Melville ends his creative life in the realm of possibility.
The interdisciplinary study of law and literature inevitably raises the question of how much the
author actually knew about events within the legal sphere. Was he influenced directly or indirectly
by specific legal issues? While there is often no direct evidence of Melville's knowledge of
particular legal cases, there are several reasons for believing that he was aware of and perhaps
uniquely informed about controversial legal conflicts of his time. Several members of his family
were lawyers. Most significantly, his fatherinlaw, Lemuel Shaw, served as Chief Justice of the
Massachusetts Supreme Court from 1830 to 1860 and was a formative influence upon major aspects
of American law during this period. In cases
3
involving slave law, economic development, and labor relations, as well as criminal law and the
insanity defense, he made significant rulings whose impact extended well beyond the Civil War.
Shaw also exemplified major transitional phases within American law. Although his thought was
grounded in common law tradition, he nevertheless became a practitioner of the instrumental
concept, developing law as a tool of social policy. As conflicts over slavery intensified, Shaw, like
other important judges of the time, became increasingly formalistic in his interpretation and
application of the law. Thus throughout his career, he exhibited the developmental range of
American law, revealing its dynamic phase in many of his economic decisions, and its constricting
aspect in his proslavery rulings. Because of his close relationship to Shaw, Melville may have had
an unusual perspective on major contemporary legal conflicts. Shaw's own anxiety over the
necessity of the law makes him a compelling example of many of the issues that are implicit within
Melville's texts. Although I argue that Melville's fictions frequently serve as critiques of positions
similar to those of Judge Shaw, the argument remains one between texts, not men.
Furthermore, I have dealt with literary texts as they imply or suggest a relationship and concern with
legal issues. Although Melville may not have known the specific legal opinion discussed, he would
have had knowledge of the larger cultural issue out of which the opinion emerged. Some issues are
directly reflected in the author's use of material; some concerns may have been mediated through
family members and acquaintances; some would be of general significance within the culture. Since
the question of the importance of direct evidence is often an issue in Melville's texts, the problem is
complicated. I have, therefore, tried to discuss specific legal cases where indicated directly within
the fiction in order to emphasize the importance of legal developments to an understanding of the
literary texts. But I have also discussed specific legal cases based upon inferences or suggestions
embedded within the texts. It is Melville's implied concern with the ideal or principle as represented
through law that has been of importance to me.
While I have not relied upon one particular critical school in developing this book, several important
scholars have been essen
4
tial to me. No student of Melville can proceed without following the path provided by the vital work
of Harrison Hayford. His editorship of the Northwestern Newberry Library editions of Melville's
works, provides access to scholarly editions, the compositional history of each text, and the
historical background relevant to them. This is the indispensable foundation of all that follows. Jay
Leyda's The Melville Log and Leon Howard Herman Melville. A Biography have provided basic
source material offered in a tone and spirit that somehow captures the largeness of the literary figure
1
they serve.
I have also drawn upon the work of several revisionist cultural critics. H. Bruce Franklin, in The
Victim as Criminal and Artist, Michael Paul Rogin, in Subversive Genealogy. The Politics and Art
of Herman Melville, James Duban, in Melville's Major Fiction: Politics, Theology, and Imagination,
and Carolyn L. Karcher, in Shadow Over the Promised Land. Slavery, Race, and Violence in
Melville's America, have provided important studies which attempt to reconstruct aspects of
contemporary cultural contexts in order to more fully understand the interconnection between a
2 Many of the essays included in The
literary work and the culture out of which it emerges.
American Renaissance Reconsidered: Selected Papers from the English Institute, 198183, edited by
Walter Benn Michaels and Donald Pease, and Ideology and Classic American Literature, edited by
Sacvan Bercovitch and Myra Jehlen, have provided stimulating reassessments of our understanding
3
of Melville and the suppositions which underly the politics of our methods of interpretation.
Recently several books in the area of law and literature have been published. Robert A. Ferguson, in
Law and Letters in American Culture, recreates the constellation of law and literature that was
dominant from the founding period of our nation up to the period of the emergence of the American
Renaissance writers. By showing the close relationship between the two spheres, he also reveals
some of the reasons this association began to come undone. Richard H. Weisberg, in The Failure of
the Word, deals with the misapplication of law, particularly as related to the twentiethcentury, which
witnessed the legitimation of barbarity during World War II. Brook Thomas, in CrossExaminations
of Law andLiterature
5
Literature, focuses upon a critique of the legal structure itself, rather than specific injustices within
4
the system.
Weisberg's book has been instructive in identifying specific failures of law within the system as a
whole. But while he emphasizes the misuse and manipulation of an essentially just law, I emphasize
a critique of the habitual workings of the legal system. Thus my approach is closer to that of
Thomas, although our conclusions do not agree. Thomas sees Melville's achievement as finally
limited by the formalism of his later works. He views them as withdrawn from historical reality, and
suggests that unresolved tensions within the literary texts indicate authorial ambivalence or, even
worse, authorial evasiveness or incapacity. I view Melville's formalistic texts as an engagement with
history from a different perspective. The creation of a literary form that insists we renew our ability
to pose questions is, perhaps, the most political of all possible critiques.
Richard A. Posner, in Law and Literature. A Misunderstood Relation, offers a provocative challenge
5 For while he explores literature about legal themes for
to this interdisciplinary enterprise.
jurisprudential insights, he resists the applications and implications that literary interpretation holds
for legal methodology. In so doing he emphasizes areas of mutual enlightenment but insists upon
the different social functions of legal and literary texts. In order to avoid politicizing literature and
deconstructing law, he posits two separate realms. Yet his very insistence upon the "misunderstood
relation" only emphasizes those ties that bind. Because literary interpretation, by its very nature,
challenges the status quo bias of the law, Posner wishes legal narratives to be treated as privileged
texts, immune from such modern maladies as ambiguity, indeterminacy, and insecurity. But the
insulation of legal texts from the scrutiny of literary vision is itself a political act. By failing to ask
certain questions about the law we only emphasize what is and ignore what might be. My reading of
Melville's texts seeks to redress this imbalance.
My understanding of specific legal issues has been enhanced by the work of various legal scholars.
Leonard W. Levy book, The Law of the Commonwealth and Chief Justice Shaw, has provided the
basis of my knowledge about this important judge. Morton J. Horwitz , in The Transformation of
American Law, 17801860, has
6
6
detailed the developmental phases taking place within American law during this time.
I am also indebted to the Critical Legal Studies movement, because many of the premises embodied
in its views bear a direct relationship to the concerns raised within Melville's texts as I have read
them. Although the Critical Legal Studies movement is composed of different perspectives, several
concepts are central to its overall thrust. It conceives of law as a discourse that defines our roles and
thus determines our social life. This discourse usually reflects the interests of the powerful people
who control it. The legal discourses usually rationalize the existing social order as natural,
necessary, and just, and the discourses continue to have power because they contain widely shared
ideals. Yet writers within this movement contend that legal discourses are primarily political in
practice and that they frequently produce unnecessarily conservative results. By examining legal
discourses in order to understand how they work, it is possible to reinterpret them. Reinterpretation
can thus potentially be a political action because it can begin to remold the social context that the
legal discourse has solidified. The Critical Legal Studies movement is striving to create space for
7
alternative ways of speaking within a specific discourse.
Attacks against the Critical Legal Studies movement, much like opposition to the deconstructionist
movement in general, charge that such approaches are nihilistic, that by challenging established
forms, be they legal or literary, one is engaging in an inevitably destructive process. But that is not
necessarily the case. Recent interest in writing legal history, such as Lawrence M. Friedman A
8 Because
History of American Law, is itself an indication of the positive aspects of this approach.
legal concepts are not viewed as stable and inevitable, they can be shown to be derived in
explainable ways, through time. If this is so, then legal concepts can be changed in the future. The
Critical Legal Studies movement seeks to open legal discourse to more kinds of interpretation and to
thereby reveal alternatives that might be present but suppressed within the law. In this respect, it is
not unlike the method of Melville "Benito Cereno" and Billy Budd. Thus radical critiques of the law
do not represent an attack upon the ideals of law, but upon the frequent distortion of those ideals
through the law.
7
Similarly, to the extent that I have drawn upon deconstructionist methodology, my purpose has been
positive. My major emphasis has been upon the ways in which Melville's works deal with the
preconceptions that shape the dominant view we take for reality. The "reality" that Melville's
fictions present to us can only be interpreted, and each interpretation will have its specific bias.
Meaning fluctuates and our usual ways of categorizing knowledge are not natural, even though they
may become official. My interest has thus been centered upon how these works force the reader to
confront the natural as manmade, and the implications that flow from that realization. I view this as
a hopeful project in the sense that the construction of new meaning does not mean the destruction of
9
the value of meaning. For if there is no objective validation for the status quo, it can be remade.
A further concern raised within this book is the conflict between morality and the law. In discussing
the responses of nineteenthcentury judges to the growing conflict over slavery, a central question
emerges. Were the judges bound to act as they did, or could they have acted otherwise? In their
defense, judges such as Shaw were predominantly antislavery in their personal views, which they
often eloquently expressed in their private writings. In addition, prior to the increasing conflict over
slavery leading up to the passage of the Fugitive Slave Law of 1850, many judicial decisions had
resulted in antislavery rulings. 10
On the other hand, an increase in proslavery decisions indicates some of the problems in the law's
structure. The judges were able to rule in the direction of freedom when societal conflict over
slavery was limited. But as the conflict increased prior to the Civil War, their decisions narrowed, as
they perceived and reacted to a greater threat to established order. In a very real sense, the law
exacerbated the conflicts it was designed to redress, partly because it functioned as an institution of
the dominant power structure that it was created to serve. The judges, who were also representatives
of this power structure, rendered decisions which, while highly conservative, may not have been
inevitable. In the economic realm, judges creatively made new law and reshaped existing law to
conform to new societal needs. But in the realm of slave law, they declared they were unable to be
innovative. In fact, they claimed just the opposite. They evoked the image of themselves as impris
8
oned by the very laws that, paradoxically, they claimed were created to make us free.
The judges themselves were personally members of the class whose interests they professionally
served. They would be unlikely to undermine a system that protected their social, economic, and
professional status. It would be impossible for them, as for any other group, to be totally unaffected
by their own particular backgrounds. They could not, nor could they be expected to, erase all their
prior beliefs and deeply held values. But the legal system, which operated through them, not only
reduced the likelihood that prejudices would be recognized and perhaps modified, but instead acted
to mask them with a cloak of neutrality. Thus the legal system served to perpetuate injustices by its
claim to objectivity.
The study of Melville's major fictions as imaginative responses to crucial conflicts in nineteenth
century American law can yield rich possibilities. His reactions to legal issues could only be
confined to his own historical period. But the intensity of his concern extends beyond his own
lifetime and into ours. The aftermath of slavery has necessitated our continuing struggle for civil
rights. The industrialized marketplace economy still fuels the friction between owners and workers.
Some of the structural problems also remain. Do we obey unjust laws, and, if not, are disorder and
violence our only recourse? How can potential but suppressed alternatives contained within the law
be revealed when representatives of the law continue to uphold the status quo? Melville's voice
seems to resonate with our own deepest frustration and desire that our society, while never
perfectible, be made less imperfect. The conception of literature as a response to law offers a
dynamic and imaginative way to participate in these vital concerns which perennially challenge us
in our quest for a better human community. By forcing the reader to consider alternative
interpretations, literature takes the first step in creating the potential for alternative action. By
containing possibilities that law suppresses or excludes, and by infusing feeling and imagination
into the realm of logic and reason, literature offers a vision of society closer to a concept of justice.
Through its critique of law, literature can actually bring the ideal within law closer to realization.
9
Chapter 2
Typee; An Early Look at the Relationship Between Literature and Law
When Herman Melville dedicated his first book, Typee. A Peep at Polynesian Life to Lemuel Shaw,
Chief Justice of the Commonwealth of Massachusetts, he was in effect acknowledging a central
influence on his life and art, one that was to continue to be important to him throughout his career. 1
Melville himself recognized his early book as the impetus for his artistic genesis when he wrote to
Hawthorne in his letter of June 1?, 1851: "Until I was twentyfive I had no development at all. From
2 Since he wrote Typee when he was twentyfive, this work can
my twentyfifth year I date my life."
be taken as his seminal work of art. The dedication of such a work to Shaw is a tacit
acknowledgment of the link between literature and law, the author and authority, the writer and the
larger society out of which he emerges. In Melville's case the relationship to Shaw was further
compounded by both familial connection and financial indebtedness. A discrepancy in the precise
wording of Melville's dedication also suggests divided feeling on the author's part. The phrase
"gratefully inscribed," which may have been the original was changed to "affectionately inscribed,"
possibly by Melville's brother Gansevoort. Both dedications express outward friendship but also a
3
state of personal linkage and dependence. This tie to the law as represented by his relationship to
Shaw can, to a greater extent than has previously been recognized, illuminate important thematic
and formal features of Melville's major fictions.
In his dedication Melville privileges Shaw's name and position while he downgrades his offering as
a little work, perhaps ironically noting the relative trivialness of art compared to the power of
11
law. Lemuel Shaw had been a close friend of Melville's father Allan from at least 1820 to his death
in 1832 and there were longstanding ties between the two families. Shaw had been engaged to
Allan's sister, who died before their marriage but one of whose letters he was carrying within his
4 Shaw remained involved with the Melville family after the
jacket pocket at his own death in 1861.
death of Allan in 1832. In 1847 Melville married Shaw's daughter Elizabeth, thus more closely
fastening already intricate and binding ties.
Shaw also financially assisted the Melvilles. Allan Melvill had several times appealed for and
received loans from him, as had Allan's brother Thomas, whose financial losses led to his eventual
imprisonment for bankruptcy in 1835. After Allan's death in 1832 his widow Maria also relied on
the judge for financial advice and support. The judge was to finance Herman Melville, enabling him
to purchase first (with his brother Allan) a New York residence in 1847 for himself and his bride and
then later a farm (Arrowhead) in 1850 and to travel in 18561857. In addition, Shaw let him borrow
needed books through his own library membership and supplied introductions abroad in 1849. 5
Thus, Herman Melville was both personally and financially indebted to Judge Shaw, a man who had
acted as a kind of surrogate father, one who, unlike his real merchant father, who had died bankrupt,
had been able not only to benefit from the emerging marketplace economy but actually to be an
architect of it through the impact of his legal decisions.
This longstanding and complex relationship between Melville and Shaw, while it tangibly aided the
young author, also must have inevitably shaped and restricted the kind of author who would
develop. Despite the warm dedication of Typee to him, Judge Shaw's presence and the law he
embodied are actually missing from the text itself. There is no law as such in the Typee valley and
no patriarchs dominate family members. Furthermore, Melville's attacks upon missionary activity
indirectly included Shaw who, for a quarter of a century was a member of the Society for
6 In his revised edition of the book Melville was forced
Propagating the Gospel among the Indians.
by his American publisher, John Wiley, to eliminate a sentence dealing with the eradication of
paganism as well as most of the Red race, and also to omit the sentences deal
12
7 Thus Melville's early work already embodies first
ing with the absence of law courts in the valley.
an outcry and then a silence, a dichotomy that was to emerge repeatedly in his major fictions.
Brook Thomas's recent interpretation of "Bartleby" focuses upon a similar division within Melville's
work. In his essay "The Legal Fictions of Herman Melville and Lemuel Shaw," he discusses the
story as "a record of Melville's ambivalent attitude toward his fatherinlaw's charity." Thomas
suggests that although Shaw's charity made it possible for Melville the writer to speak, such charity
resulted in an intricate connection between the exploitative capitalistic system and the author who
was sustained by the fruits of that system:
Given this situation, Melville's only choice as a writer would seem to have been to copy
out the existing codes of the world he lived in to be no more than a scrivener in
service to Wall Street or to prefer not to write at all. Instead, Melville chose to write a
story about his dilemma, and what the story demonstrates is that Bartleby, the Scrivener,
8
was not the only one who was not a free agent; Melville the writer, was not one either.
While such a view suggests that Melville's growing awareness of a writer's artistic limitations and
his own increasingly constrained financial situation drove him into a silence of sorts, it seems more
probable that this awareness existed in embryonic form early on in his writing career, and that in
fact it was a force shaping the kind of writer he became. In his letter to Shaw on March 19, 1846,
which accompanied "one of the first copies of Typee," Melville expresses the hope that "this little
narrative of mine will afford you some little entertainment," again minimizing the full intent of the
9 In another letter to Shaw, on April 23, 1849, Melville refers to a disparaging critic of Mardi
work.
as a "common hangman," equating a bad review with legal punishment. He uses the letter to
minimize the damage which such reviews might do to his worldly reputation, a matter of some
concern to an emerging author ambitious for success, as well as to the man supporting his efforts.
Similar concerns preoccupy Melville in his October 6, 1849 letter to Shaw, wherein he claims
economy as his motto and again seeks to explain his own attitude toward his literary reputation.
While he seems concerned to establish his current books Redbum and WhiteJacket as potential
money makers, he simultaneously rejects the role of
13
writing primarily for popular success, to please the market: "They are two jobs, which I have done
for money being forced to it as other men are to sawing wood." While he expresses a general
satisfaction with what he has written, he says these are not the kind of books he would write if he
were free, which he implies he is not:
Being books, then, written in this way, my only desire for their 'success' (as it is called)
springs from my pocket and not from my heart. So far as I am individually concerned,
and independent of my pocket, it is my earnest desire to write those sort of books which
are said to 'fail.'
Thus there is a thread running through Melville's correspondence with Shaw indicating that ties to
money or success in the marketplace produce "successful" writers who must please those they rely
upon. Therefore, audience dictates content. He instead, if free, which he is not, would prefer to fail.
Telling the truth "covertly" and "by snatches," therefore, may be not only an epistemological
methodology, but a pragmatic response to readers including the authority figure Shaw upon whom
he, his family, and to some extent his literary production depended. 10
Melville's initial book may have been influenced not only by his relationship to Judge Shaw and
other legal acquaintances but also by legal methodology. Melville added the preface to Typee to
subdue the uneasiness of his English publisher, John Murray, about the believability of the narrative
as an actual record of experience. As such, the author's wording is slippery, stating a "desire" but not
a promise to tell the truth. But considering Melville's late deletions from the text, the preface might
also have been written both to placate the attitudes of Judge Shaw and the legal processes through
which he implemented them, and at the same time to undermine covertly the establishment of those
attitudes into prevailing ideology. I will argue that the preface can be read as a concise version of
one of Melville's concerns in the book: to use aspects of legal reasoning in order to subvert them.
By undercutting objective methodology, the reliability of facts, and the ideal of the impartiality of
judicial decisionmaking, Melville is able to emphasize the distinctions between literature and law
as systems of truthseeking.
14
In his introduction to The Politics of Law: A Progressive Critique, David Kairys defines the main
attributes of the decisionmaking process of legal reasoning in the following way:
1. The law on a particular issue is preexisting, clear, predictable, and available to anyone with
reasonable legal skill.
2. The facts relevant to disposition of a case are ascertained by objective hearing and evidentiary
rules that reasonably insure that the truth will emerge.
3. The result in a particular case is determined by a rather routine application of the law to the
facts.
4. Except for the occasional bad judge, any reasonably competent and fair judge will reach the
correct decision.
Kairys then proceeds to refute these points by systematically denying that there is an idealized
process by which legal decisions are formed. Objectivity, expertise, or science do not characterize
legal methodology. Rather, the legal process is determined by the force of a dominant ideology that
legitimizes its interests as objective and uses its perceived legitimacy to confer broader powers upon
itself. Thus the notion that America is a government of laws and not of men becomes an accepted
norm, but a norm which masks the specific human intentions involved in the formation of those
laws. 11
Melville's preface to Typee takes up conflicts involved in legal methodology, and while Melville
seems to be employing aspects of the legal process, he is actually exposing their deficiencies. The
narrator's voice (which may be a fictionalized version of Melville's own) suggests his concern that
he may not be believed by his potential critics because of inaccuracies or omissions in the treatment
of his subject. And so he says that he will not enter into explanations concerning the origins and
purposes of native customs. While this reasoning serves to placate critics, this same explanation is
offered within the text as well. Tommo (the name given to the narrator by the natives and which he
maintains during
15
his stay in the valley) also claims he will not search for the origins of the natives' religious
observances since they themselves do not seem to know very much about them or to have the
least interest in them. In effect, there is no preexisting, clear, and predictable explanation for
the behavior that Tommo observes.
Melville here is implicitly undercutting the kind of travel literature which purports to explain strange
customs, but he is also parodying an important procedure of legal reasoning and one expertly
employed by Judge Shaw. It has been noted that a distinguishing feature of Shaw's mind was
his constant preoccupation with basic principles. He had a knack for knifing to the heart
of a controversy and explaining the principle that governed it. . . . To Shaw the law was a
science founded on reason. Accordingly, he strove in his opinions to impart to the law
system and symmetry. 12
Shaw would seek for the foundation of a principle in common law and then try to mold it to
contemporary needs, a procedure which he succeeded in mastering. However, rather than showing it
to be a scientifically objective methodology, Shaw often demonstrated that his legal procedure was
the expression of his own intentions as reflected in the larger society. Thus when he made his
important master/servant rulings, despite the common law origin of the notion of the master's
responsibility and liability for the wrongs of his servants, Shaw changed the intent of that principle,
making culpability rest upon the worker rather than the master. 13 Although departing from common
law origins, he was in accord with a contemporary economy which sought to minimize the liabilities
of business so that it might expand, even at the expense of the wellbeing of the individual worker.
Thus Shaw's "scientific" or objective methodology was skewed by his own intentions as well as by
his reliance upon a method which, while seeming to be objective or neutral, actually helped him to
legitimize his own perspective which favored the expansion of business.
Furthermore, in the preface to Typee Melville excuses himself for any inaccuracies concerning
dates; he here shows an interest not in the actual facts but in the human implications of those facts.
Thus in Typee Tommo will leave the world of measured time upon which Western man is
dependent, and enter a more fluid realm of time, symbolized by his plunge into the sea and his
reemergence
16
into the native valley, a sphere in which time is governed by human need. Artificial systems
such as clock time and written law as Western man knows them, are missing from Typee.
Melville continues in the preface by justifying the liberties he is taking with language. The spelling
he employs will be that closest to the actual words as spoken by the native people. He complains:
"In several works descriptive of the islands in the Pacific, many of the most beautiful combinations
of vocal sounds have been altogether lost to the ear of the reader by an overattention to the ordinary
rules of spelling" (xiv). Melville's observation about the system of spelling bears upon his view of
law. According to Harrison Hayford in his "Notes" on Omoo, there has been much critical
commentary on Melville's manipulation of the spelling of native words. 14 Hayford claims that
Melville's variants in spelling may be due to several possible factors: his lapse of memory from the
time he first heard these words pronounced until he wrote them down, errors in the sources he used,
and the author's own Northeastern American dialect. Melville also used forms from the Marquesan,
Hawaiian, and Tahitian languages. The result seems to be that the author followed patterns of
spelling that permitted him to retain as closely as possible what he took to be the native
pronunciation of the word. His primary concern seems to have been to give the impression of the
beauty of the living language as it was actually spoken. American contemporary law, on the other
hand, was generating new words and terminology that seemed superimposed upon it to account for
practices which had already come into use but had not yet attained a definite legal status. Thus the
naturalness of the sound of native language stands in contrast to the expanding jargon of the
language of law.
Melville's next explanation in the preface deals with a justification of his attack upon the
missionaries, one of the points that would be most severely criticized by early reviewers of the book.
Contemporary criticism seems to have focused on the immorality of advocating the savage life over
the civilized, and the imbalance of seeing only the attendant evils of civilization rather than its
inherent good. While George Ripley in The Harbinger saw the dedication to Shaw as testifying to
the book's authenticity, The Christian Parlor Magazine was surprised that Shaw would have allowed
the use of his name to legitimize "flagrant outrages against
17
civilization, and particularly the missionary work" 15 Features of Melville's attackthose issues
directly related to Shaw's legal workwere not specifically noted. The narrator of Typee
comments upon the introduction of class distinctions in the valley, which he relates to the
activities of the Temperance Society. Chiefs have some distinctions, but so few are there that
there is a considerable time lapse before even the inquisitive Tommo realizes he is living with a
prominent chief. In Typee some people are wealthier than others; their ornaments are more
attractive, and their homes are better stocked. But the natives, he believes, are not
characterized by social rank.
The Temperance Society, however, has introduced class distinctions among the natives, elevating a
"blockhead" to the "blood royal" with the result that "he has lost the noble traits of the barbarian,
without acquiring the redeeming graces of a civilized being. . ." ( Typee, pp. 18889). In a suggestive
footnote in Chapter 26, the narrator, looking back over his experience as Tommo, states that since
the arrival of the white man
the two classes are receding from each other: the chiefs are daily becoming more
luxurious and extravagant in their style of living, and the common people more and
more destitute of the necessaries and decencies of life. . . . The resources of the
domineering chiefs are wrung from the starving serfs, and every additional bauble with
which they bedeck themselves is purchased by the sufferings of their bondsmen; so that
the measure of gewgaw refinement attained by the chiefs is only an index to the actual
state of degradation in which the greater portion of the population lie grovelling ( Type,
pp. 18889).
Not only does this statement indicate the harshest kind of criticism of white exploitation of the
islanders, but indirectly it attacks a system which exploits the many for the few, a system with
similarities to both Northern industrial capitalism and the Southern slavery system.
Shaw's shaping of the law during the period of his tenure as Chief Justice of the Supreme Court of
Massachusetts, 18301860, involved both of these systems. His opinions almost all favored the
growth and development of capitalism and generally favored master over worker. While his stated
rationale for these decisions was always based upon his concept of the public interest or the general
good, their cumulative effect was to form two distinct
18
classes owners and workers, the few and the many. The many supported the few, with a
widening economic disparity between them. Similarly Shaw's decisions concerning slavery
favored the continuation of that institution in the name of the preservation of the union. For
although he was personally opposed to slavery, his legal rulings contributed to the
perpetuation of the slave system. Following his initially broad interpretation of the Fugitive
Slave Act, beginning with the Latimer case in 1843, Shaw progressively narrowed his
interpretation. He was eventually to be criticized for favoring cotton interests and their
financial supporters in Boston, whose manufacturing success depended upon slavery. 16 Thus
the missionaries' colonization of the islands is but the extension of an exploitative system in
full operation in contemporary America, and Judge Shaw could be representative of those
whose decisions made in far away drawingrooms under the guise of charity, actually extended
the exploitation they believed they were alleviating.
Melville then goes on in his preface to justify "a few otherwise unwarrantable digressions" by
claiming that the great interest that the events in the Sandwich, Marquesas, and Society Islands are
arousing in America and England as well as throughout the world demand such attention (p. xiv). In
addition, at the time of the revised edition of Typee, Melville states in a letter to his brother
Gansevoort, May 29, 1846, that
People here are all in a state of delirium about the Mexican War. . . . Nothing is talked of
but the 'Halls of the Montezumas'; And to hear folks prate about the purely figurative
apartments one would suppose that they were another Versailles where our democratic
rabble meant to 'make a night of it' ere long. . . .
Melville is here challenging the ability of the law to use institutionalized violence for control while
simultaneously protecting the dominant system of political and social order. The law is able to do
this because of the acquiescence of most of the people. Institutionalized power is accepted by the
mass of people as connected to a higher orderscience, nature, or Godand hence derives broader
power from these associations. Rather than recognizing law as manmade, to substantiate particular
policies, men come to see law as beyond human intention. Therefore, the controlling powers can use
law to compel obedience to the existing order.
19
As Melville's contemporaries read accounts of imperialist exploits in the South Seas, as well as
stories of the impending conflicts with Mexico, they automatically accepted official versions of
events they could not witness for themselves. Like the "Halls of the Montezumas," the purely
figurative becomes the literal, as verbal artifices shape political action. Thus one of Melville's
purposes seems to be to call attention to the artifice of words. The world of the text and the
historical world created through the words in newspaper accounts may both be artificial
constructs, but it is only the book's world that is taken for fiction. Thus Melville is calling into
question the authenticity of all verbal accounts, particularly those that have actual
consequences, and in so doing is calling attention to a government of law as manmade rather
than given.
The concluding paragraph of the preface, therefore, can be read as a defense of fiction as a kind of
imaginative truth that offers an alternative to purportedly factual accounts. Recent scholarship has
revealed that much of Melville's narrative is not true. He did not stay with the Typees four months,
but only three or four weeks. Perhaps he did not have a very arduous trek into the valley as the
terrain did not demand it. He did rely on outside sources for details of native life, although he
initially disclaimed any knowledge of prior records. 17 It seems then that he knowingly lied, while
claiming to be telling the truth, and that this discrepancy was an inherent feature of the text. This
dichotomy accomplishes two things simultaneously. It calls the reader's attention to the possibility
of being manipulated by a form that he accepts as valid, and it creates an alternative kind of "truth,"
one which involves the imaginative shaping of the given, a process which results in the narrative
that is Typee. By seeing a given system, be it law or literature, as a manmade construct, the
individual has the possibility of shaping it through interpretation, rather than being blindly shaped
by it.
Conflicts within contemporary American law may also have had an impact on the issue of authorial
intent as implied within the text of Typee. Critical argument about Typee seems to have focused
upon the question of where the sympathies of the author lay. Did Melville favor the state of natural
man, a Rousseaulike existence free from the cares and inhibitions of civilization? Or was he, in the
end, indicting the unrealizable simplicity of native life and thus
20
redefining the nature of civilization? Since the 1950's, critics have come to see some kind of
interrelation between the two states and have argued that Melville was either using each to
criticize the other, or was exposing each state as deficient when separated from its oppxite. 18
But no critic thus far has examined the conflicts within American law that may have
contributed to Melville's conception of this issue.
Morton J. Horwitz, in The Transformation of American Law, 1780 1860, has characterized the
period from the American Revolution to the Civil War as one of the greatest transformative eras in
American law. But while legal change led to economic growth, it did not necessarily lead to a fair
distribution of wealth; instead it allowed commercial interests to gain a disproportionate share of
wealth and power. Among the most significant features of the "legal transformation" was the
emergence of an instrumental conception of law. Law was no longer viewed primarily as a method
of settling disputes as it had been in eighteenthcentury common law, but was now seen as a means
of shaping policy and encouraging social change in particular directions. Judges formulated legal
doctrine with the purpose of stimulating social change. Whereas prior to the nineteenthcentury the
earlier legal view had been based to a great extent on the uniformity of the society out of which it
grew, the emergent nineteenthcentury legal concepts reflected the specific needs of a growing
economy; new situations required not allegiance to precedents, but the creation of new responses to
heretofore unprecedented developments. While these transformations gave rise to a more predictable
and certain application of the law for commercial development, they also produced consequences
detrimental to those who did not share in the control of wealth and power. 19
In Typee the impetus for the narrator's jumping ship is the breaking of a contract by the captain. This
incident has been variously described by critics as reflecting the narrator's undisciplined and self
indulgent impatience with life which prompted him to go to sea and then to jump ship. It has also
been asserted that the narrator's legalistic argument for abandoning ship is a search for a
rationalization which will satisfy his actions. The narrator's jumping ship has further been
interpreted as his breaking a contract with civilization, a move which takes him out of his element,
where he
21
suffers bodily harm, only in the end to violently make his escape for the necessary return to
the world of civilization and thought. This act, however, has been recognized to have
significance in the narrator's explanation of why he ran away. His argument parallels that of
the Declaration of Independence; the narrator is listing the causes that impel separation.
These causes involve a systematic violation of the ship's society, supposedly based upon a
social contract and natural rights philosophy. The failure of the captain to honor obligations
has justified rebellion. 20 Specifically, Melville is focusing upon the moral bankruptcy of
contract law, which in the nineteenthcentury developed as a key instrument for altering
economic and social relations rather than as a mechanism for enforcing promises:
When I entered on board the Dolly, I signed as a matter of course the ship's articles,
thereby voluntarily engaging and legally binding myself to serve in a certain capacity for
the period of the voyage; and, special considerations apart, I was of course bound to
fulfill the agreement. But in all contracts, if one party fail to perform his share of the
compact, is not the other virtually absolved from his liability? Who is there who will not
answer in the affirmative?
Having settled the principle, then, let me apply it to the particular case in question. In
numberless instances had not only the implied but the specified conditions of the
articles been violated on the part of the ship in which I served. The usage on board of
her was tyrannical; the sick had been inhumanely neglected; the provisions had been
doled out in scanty allowance; and her cruizes were unreasonably protracted. The
captain was the author of these abuses; it was in vain to think that he would either
remedy them, or alter his conduct, which was arbitrary and violent in the extreme. His
prompt reply to all complaints and remonstrances was the butt end of a handspike, so
convincingly administered as effectually to silence the aggrieved party.
To whom could we apply for redress? We had left both law and equity on the other side
of the Cape ( Typee, pp. 2021).
This passage, in addition to parodying legal reasoning by first defining the principle and then
applying it to a particular case, also encompasses the actual legal situation of the period. According
to Lawrence M. Friedman: "the nineteenthcentury was the golden age of the law of contract. This
was a natural development. The law of contract was a body of law well suited to a market economy."
Contract was increasingly used to support expanding business as opposed to the earlier eighteenth
century reliance upon covenant and bond. It provided
22
a stability of arrangements legally made, at least in the short and middle run. The root notion
of the growing law of contract was basically the same. Freely made bargains would be honored
and, if necessary, enforced. There would be no expostfacto tampering with bargains for
whatever reason.
Contract was to emphasize a meeting of the minds as opposed to fairness, which was related to
eighteenthcentury notions of natural law. Another major principle of contract law was the
insistence on a true bargain between parties. One party must have made an offer which the other
party must have literally accepted. 21
In Melville"s text all of these conditions are specifically met. The narrator signs on voluntarily, but
particular conditions of the articles have been violated. The captain is the author of these abuses,
and there is no redress for the aggrieved party. Melville is thus justifying rebellion against violation
of the law and also criticizing the kind of law which, while augmenting the power of authority,
obliterates individual rights.
The result of the power of authority over the mass of individuals which occurs on the ship parallels
the actual result of the effects of contract law. According to Friedman, another outgrowth of the
expansion of the marketplace in nineteenthcentury America was the need for standardization, a
method necessary if the developing economy were not only to grow but to function at all. But a
concomitant development of the standardization of agreement through contracts was a growing
depersonalization of the law and a corresponding feeling on the part of society that in a market
economy the legal system could not both promote the economy and provide strict justice among
individuals:
Courts turned their backs on what in most societies is their primary and ordinary
functionthe settlement of disputes. They abandoned people to their own institutions and
devices. The law of a mass economy avoids individualization. It reduces transactions to
the typical, to the routine; it slices up some small segment of reality and handles it in a
standardized way. Behaviors are converted into legally relevant forms. 22
One of the results of this routinization through law is that people tend to stay out of the courts, to
avoid litigation because of either expense or discouragement. The nature of the law itself is the
greatest deterrent to litigation. Law in industrial societies is complex, even mysterious, requiring a
high degree of technicality
23
to be understood. This discourages people from believing in a common sense notion of what is
right. The "zone of immunity," while it has the beneficial effect of reducing minor litigation,
also has a negative side. It removes most of the population from any voluntary contact with
the courts:
The nineteenthcentury practically speaking denied justice to the poor and powerless.
Redress of grievances through law was distinctly abnormal. There may have been, in
absolute terms, a tremendous volume of litigation. But the man in the street did not use
courts to adjust his problems or settle his disputes. The average man was left alone,
separated from whatever wisdom, understanding, and justice may inhere in the formal
principles of law. 23
Melville's sailor is much like the man in the street. He feels there is no one to apply to for redress;
the law is beyond him. The crew are a lowly bunch, not much disposed to taking risks and only
united in "enduring without resistance" ( Typee, p. 21). Protest will only lead to further hardship. By
placing themselves in the "zone of immunity," by doing nothing, the crew is reacting to legal
authority much as the mass of individuals did in nineteenthcentury America. Contract law,
ostensibly a guarantor of the rights of willing parties, has become an instrument of a social policy
creating a mass of powerless individuals dominated by authority reinforced by power. Melville
seems to be asserting that only by rebellion, by plunging into a different element, can one distance
oneself from unjust authority and thus more clearly perceive its distinctive features. The initial
action of jumping ship, therefore, is a reaction against the dominant trend of American law to foster
and support the tyranny of authority over individuality, and then to erect a mystifying system which
pushes man still further away from access to that system.
A central affirmation of native virtues occurs in Chapter 17. In the narrator's comparison of civilized
and native methods of punishment, deficiencies in Western practices are emphasized. And while
neither method is uniformly extolled, the text implies that what has been lost in the Western system
is the close connection between instinctive feeling and its embodiment in action. The natives of
Typee, it seems, are indeed cannibalistic. While the text does not suggest any inherent value in
eating one's enemies, it does suggest that such rituals grow out of the living practices of a
24
people, rather than the outside imposition of a system calculated by the few to control the
many.
The narrator continues his diatribe against civilized society by referring to contemporary America,
where he finds the embodiment of civilized cruelty in the prison system. His main objection to the
system is that it is institutionalized and impersonal cruelty. The prison system also punishes slowly
over time rather than all at once, thereby prolonging the torment of the victim and increasing the
remorselessness of the perpetrator:
To destroy our malefactors piecemeal, drying up in their veins, drop by drop, the blood
we are too chickenhearted to shed by a single blow which would at once put a period to
their sufferings, is deemed to be infinitely preferable to the old fashioned punishment of
gibbeting much less annoying to the victim, and more in accordance with the refined
spirit of the age; and yet how feeble is all language to describe the horrors we inflict
upon those wretches, whom we mason up in the cells of our prisons, and condemn to
perpetual solitude in the very heart of our population ( Typee, p. 125).
According to William E. Nelson in his essay "Emerging Notions of Modern Criminal Law in the
Revolutionary Era," the change in methods of punishment reflected in the establishment of the
prison system in the nineteenthcentury indicates a general shift in the idea of crime. Law in the
early American colonies reflected the idea of crime as sin and equated punishment with morality, in
contrast to modern law, which seldom seeks to enforce morality. Most of the developments which
transformed Puritan criminal law into the criminal law of today occurred during the three decades
following the American Revolution. According to the Puritan ethic, crime was considered a sin, the
criminal was a sinner, and criminal law was the earthly arm of God. Although economic interests
played a part, the essential evil was defined as an offense against God: "Related to men's view of
crime was their view of the criminal. The typical criminal was not, as today, an outcast from society,
but only an ordinary member who had sinned. Like sin, crime could strike in any man's family or
among any man's neighbors." 24
Court records of the 1760's and 1770's indicate that all elements of society committed crimes. But
unlike today, a convicted criminal was not confined to prison in order to remove him/her from the
rest of society: "In the fifteen year period before the Revolution,
25
there was only one instance of a person being imprisoned for more than one year." The years
following the Revolution, however, brought changes in attitudes about crime and the criminal,
as prosecutions for violations of morality almost stopped and prosecutions for economically
oriented crimes greatly increased. Motivated by economic hardship, thefts increased as did
crimes against property. 25
By 1810, the criminal was no longer viewed as a sinner against God but rather as one who preyed
upon his fellow citizens. Simultaneously, the criminal was becoming an outcast from society. Prior
to the Revolution all sorts of men had been criminal violators, but by 1810 it was rare that a wellto
do member of society was charged with violating the criminal law. Most violators were now the
poor, and the law enforcement system increasingly sought to isolate them from the elements of
society upon which they preyed: "Whereas God would forgive the sinner of old, the villain of 1810
kept returning to crime and was forever condemned to segregation from the society whose peace
and prosperity he challenged." 26
Thus from the period of early colonial development through the Revolution and the post
Revolutionary decades, criminal law and punishments reflected several basic changes which in turn
reflected larger patterns of the emerging marketplace economy. First, violations against property
superseded violations against God; money, not morality, became the focus of the law's protection.
Second, the increasing importance of the sanctity of property led to the emergence of a class of
impoverished criminals who more and more came to be seen as outcasts. Third, this development
led to a separation of deviants, enforced by the power of the wealthy, who were able to legitimize
their authority through the force of law. The growth of the prison system in nineteenthcentury
America thus embodies the separation of law and morality which Melville dramatizes, as well as his
observation that "civilized barbarity" as encoded in Western law was devitalizing man's instinctive
responses.
In his central observations about the natives of Typee, the narrator privileges those very things that
were increasingly being eroded in contemporary American society by the impetus of a legal system
favoring economic interests rather than human interests. What is lacking in Typee, he declares, are
"those thousand sources of irritation that the ingenuity of civilized man has created to mar his own
26
felicity" ( Typee, p. 26). Manmade irritations, in his view, are the causes of Western man's
discontent, and these irritations involve legal structures relating to money:
There were no foreclosures of mortgages, no protested notes, no bills payable, no debts
of honor in Typee; no unreasonable tailors and shoemakers, perversely bent on being
paid; no duns of any description; no assault and battery attorneys, to foment discord,
backing their clients up to quarrel, and then knocking their heads together, no poor
relations, everlastingly occupying the spare bedchamber, and diminishing the elbow
room at the family table; no destitute widows with their children starving on the cold
charities of the world; no beggars; no debtors' prisons; no proud and hardhearted
nabobs in Typee; or to sum up all in one word no Money! That 'root of all Evil' was
not to be found in the valley ( Typee, p. 126).
The narrator also draws a connection between preoccupation with money and its effect on man's
psychological and sexual condition. Men and women in Typee do not suffer from melancholy, a
feeling that periodically plagues Tommo (as well as other Melville narrators, notably Ishmael, who
embarks upon his voyage partly to escape the blues). "Blue devils, hypochondria, and doleful
dumps" are significantly equated with competitive economic life. Similarly, the natives of Typee are
sexually happy; we get no peep at withered spinsters, lovesick maidens, sour old bachelors, or
inattentive husbands ( Typee, p. 126). Physical and mental wellbeing are joined in the natural state.
Melville's attack on the evils of money also reflects historical economic development. The
Encyclopedia Britannica states that money is thought to have originated out of religious and social
custom rather than directly out of barter. 27 Commodities that later came to be significant as a
standard of value seem first to have served as ransom, ritual offering, or decoration: "The
application to economic ends generally developed out of the earlier discharge of religious, legal, and
ritualistic uses." Thus money was woven into the texture of society. It was often some useful
substance, and only gradually involved ornamental materials. In contrast to such terms as
"pecuniary," derived from the Greek word for ox, "drachma," meaning handful, and "pound"
signifying metallic weight, which reflect the commodity origin of money, are the words "note" and
"bill"' which relate to debt:
27
The step from terms denoting physical assets to terms indicating debt is of great significance
in the history of monetary development. At first debt money retained a link with the past in
the form of legal and other connections with a commodity base such as gold and silver. Thus
the bank note was originally a promise to pay some sort of asset. However in many modern
countries debt money stands alone, without any pretense to commodity backing. 28
In the first half of the nineteenthcentury, the American monetary system was weak. As Friedman
states in A History of American Law, "No man was safe unless he held silver and gold, rare metals
indeed. The law reflected a desperate search for security how to protect one's own assets and how
to get recourse against the other man's." One of the prime instruments of effecting this was the use
of the mortgage, a term which literally means "dead pledge," and whose use led to increased
conflict between debtor and creditor classes. 29
Thus in Melville's passage dealing with money, the terms "debt," "note," "bill," and "mortgage" all
bespeak the movement away from commodity money and to debt or nonasset money. Economic
developments encouraged through legal developments reflect the separation of word and thing.
There is literally nothing to back up one's promise; it is in fact a "dead pledge." This detachment of
word and thing is also felt in the contentiousness of competitive men. Melville's passage, therefore,
traces "the root of all evil" to the developments of competitive capitalism and the rise of a money
economy increasingly devoid of value to those at its mercy. This system, nevertheless, has been
institutionalized as the way to achievement within such a society. These developments in turn have
shattered bonds among men, bonds evocatively appreciated by the outsider in Typee.
The narrator states that there were no laws within the valley, except for the mysterious operation of
the inexplicable taboo. The text suggests that several features of the taboo stand in complete
opposition to aspects of Western law. The inhibiting of behavior is not encoded in writing but seems
to emerge from within the social network. Its prohibitions usually relate to rules of manners or
conduct rather than law or criminality and form part of the moral code of the society, which if
disturbed could disrupt significant social relationships. The taboo derives its force from the non
rational instinct rather than the rationality of language, and it depends
28
upon a cohesive and unified body of social tradition rather than a growing disparity among
social classes.
The narrator is then led to ask himself the following question: how can a just society exist without
law as he knows it? And his answer leads him away from the notion of civilized legislation and
towards a concept of natural law, an idea that had been more widely articulated in America prior to
the emergence of the marketplace economy of the early nineteenthcentury. Tommo accepts several
premises in order to arrive at this answer. First, he sees man as inherently good. Second, he
conceives of governing rules as understandable to common sense rather than specialized and
mysterious. Third, he recognizes the existence of universal principles as well as the human
community's agreement to perceive these principles as good:
They seemed to be governed by that sort of tacit commonsense law which, say what
they will of the inborn lawlessness of the human race, has its precepts graven on every
breast. The grand principles of virtue and honor, however they may be distorted by
arbitrary codes, are the same all the world over: and where these principles are
concerned, the right or wrong of any action appears the same to the uncultivated as to
the enlightened mind. It is to this indwelling, this universally diffused perception of
what is just and noble, that the integrity of the Marquesans in their intercourse with each
other is to be attributed ( Typee, p. 201).
It is the arbitrary codes in which the universal principles have been embodied that have taken
precedence in contemporary America, and the result has been that universal principles of the just
and noble have been made to appear relative.
Thus, within the text, rather than being an argument for either the natural or the civilized state, the
Typee valley serves as a touchstone by which to measure the deficiencies of nineteenthcentury
American society. Tommo's vacillating character reflects the text's implication of the difficulties
arising from the separation of the natural from the civilized. The narrator, while a critical witness of
imperialist exploitation in the South Seas, is himself a product of such a society, and thus, while he
rebels against it, he also represents it. It is Tommo and Toby who are referred to as slithering into
the valley like serpents; it is they who are the disruptors of Paradise. Tommo comes prepared with
the inevitable calico needed to purchase native good will. It is he who cannot tell a
29
Happar from a Typee, supposed good from supposed evil, because his method of reasoning
prevents him from interpreting what he is experiencing. It is Tommo who invents the popgun
for wargames imitative of those actually occurring in the region. And it is Tommo whose last
gesture of farewell to Typee is a bolt of calico and an act of violence. The text suggests the
dilemma of the nineteenthcentury American who would criticize encroachments upon nature
but who himself participates in them. Such a man is left only with the gestures or codes of the
civilization he would criticize.
Furthermore, Tommo's changing point of view represents Western man's difficulty in allowing
himself to confront alternative ways of being. Tommo repeatedly entertains opposite notions about a
single issue. He sees his sojourn in Typee as both freedom (his escape from the ship) and captivity
(his imprisonment in the valley). He experiences sensual pleasure but also incapacitating pain. He
admires the natives, but sees their lives as little more than one long nap, with only slight
interruptions. He understands their alleged cannibalism in terms of revenge, but he instinctively
fears it. In fact, he can participate in the experience of the valley only by perceiving himself as
forced to do so. He wills himself there only after denying himself all alternatives. His companion is
gone, his illness gets worse, and he passes from despondency to resignation. It is only when emptied
of restraints imposed by Western culture that he can allow himself to experience an alternative to it.
The duality of the narrator's attitude shares aspects of the legal mentality the longing of the mind
for a definite position, an answer or decision, a definition, or a mental resting place. And ironically,
it is the native of Typee who, without law, is literally and figuratively at rest.
When Tommo flees the valley, he is, as some critics have suggested, saving himself by preserving
his identity as Western man, an identity he cannot shed even if he desires to do so. 30 How,
therefore, can the Western mind be revitalized by the natural? It seems that in his first book,
Melville thought that such a fusion might take place through art. In a unified state of nature man
does not need that product of selfconsciousness, art. If he were in perfect harmony with his world,
he would not need to reflect upon it and reimagine it. This concept of the union of word/thing,
mental/physical, thought/action, becomes an idealized model
30
which, while unavailable to Western man in his actual life, can be transmitted to him through
art. Both the manufacture of tappa and the compelling figure Marnoo become metaphors for
a kind of revitalizing art, whose products emerge in harmony with the society of which they
are an integral part. Unlike the American artist such as Melville, whose fame is tied to
financial support and whose expression might be curtailed by the dominant forces of society,
the ideal model for art fuses the artistic product with its constituent environment.
Tappa is the versatile and beautifully white cloth manufactured from the bark of the trees,
remarkably similar to the blank paper used by the writer, and evoking the empty scroll marking
Melville's grave. 31 Its production stands in direct contrast to Western manufacture. The native
manufacturing process is integrated, like the societal structure itself. The sounds of production are
melodious; the rhythms follow the natural inclinations of the workers. The cloth is processed by the
elements the force of running water, the movement of the air, the power of the sun.
Similarly, the finished product is woven into the texture of society; the cloth is involved with all of
native life. The tappa provides pleasure as decorative apparel, but it is also sacred and is used in
religious ritual. It adorns the innermost sanctum of the grove and clothes its most significant god. It
is related to sexuality, covering the loins of male warriors, but it also serves as a burial cloth. It is
involved with the most instinctive aspects of native life; tattooing instruments are wrapped in it, as
are the human remains of cannibalism. It measures the lapse of time; it embodies with acceptance
the passage from birth through death. Thus the tappa is an allinclusive natural expression of the
living ways of the people.
The character Marnoo also provides an artistic model for Western man. Marnoo is taboo, but the
unwritten prohibitions free him, in contrast to the American artist who is restrained in his own
society. Marnoo is accepted everywhere and is open to a pluralistic view of existence which he can
transmit to everyone, a quality often attributed by critics to the author Melville. Physically, Marnoo
embodies the classic symmetry of a "Polynesian Apollo"; repose is combined with warmth and
liveliness. He is able to communicate and possesses a "natural eloquence." It is Marnoo who can
understand Tommo, transmit his message, and ultimately
31
help him escape so that he may become the writer of his experience. Thus it is not the
nostalgic worship of nature that is extolled within the text, but the incorporation of its vital
strengths into civilization.
Melville's response to the loss of nature is not power or legal domination, but art as the written
word. When nature is disrupted, law becomes necessary, but so does art. And Melville as author
assumes a stance that inversely mirrors that of the authority figure. The captain, "the author of these
abuses," is supplanted by the author of the text, who, through writing, can call attention both to
abuses and to the processes through which they become accepted. The author Melville is also
bringing himself into contention with such an authority figure, Shaw, the author of many legal
opinions contributing to abuses within nineteenthcentury American society. The author thus
becomes an alternative to authority.
An author as defined by the Oxford English Dictionary is "the person who originates or gives
existence to anything, an inventor, constructor, founder . . ." and as "he who gives rise to or causes
an action." An author is also "one who rules, commands." He has "the power or right to enforce
obedience." And an author is also "one who sets forth written statements," one who has "moral or
legal supremacy . . . weight of judgment or opinion." Further, an author is "one who begets, a
father." Thus the concept "author" involves not only thought but action, enforceable power as well as
the idea of fathering. 32 For Melville, the assumption of the role of author involves the taking of
action through words words that will accord him an authority commensurate with that of such a
father figure as Judge Shaw, to whom he dedicates his book but whose judgments the text of the
book implicitly supplants.
Thus in his first major book, Melville's imaginative conception of the law is revealed in several
significant ways. First, because of his close and complex relationship to Judge Shaw, Melville's
works may have relied upon a method of revealing by concealing so as to avoid overtly attacking an
authority figure upon whom he was dependent. Second, this early book displays a concern with the
process by which legal forms determine our thoughts and how fiction, by calling attention to this
method, can offer alternative modes of arriving at interpretations. Third, one of Melville's major
themes, the contrast of nature and civilization, was in effect influ
32
enced by the trend in American law away from its natural rights tradition towards the
implementation of an expanding marketplace economy with its attendant iniquities. Finally,
Melville's early conception of art indicates his hope that imaginative forms had the potential
to revitalize men's minds. Although in subsequent works he was to examine alternative
notions of human behavior and the need to control it, and although he was to embody his
skepticism about art in formal features of his later works, he was never to completely abandon
the ideal represented in the character of the Typee natives. Not even the wickedness of the
manofwar world could completely overturn his early views.
33
Chapter 3
White Jacket: or The World of Ordered Conflict
If the world of Typee represented an alternative to nineteenthcentury industrial society, the world of
WhiteJacket can be seen as a microcosm of what that society was like in its most extreme form,
compressed into the confines of the ship and set adrift upon the ocean. Unlike Typee, the first
literary product of a young and successful author, WhiteJacket is a more sober picture of a nation
poised on the brink of disaster. It was written by a more mature author, who, after experiencing both
success (with Typee and Omoo) and failure (with Mardi) seemed ready for a probing analysis of
how the structure of this society enabled it to function as it did. One of the significant structures
explored within the book is law.
Melville's fifth book provides a minute dissection of the laws which hold this society together, give
it its reason for being, and define and determine the individual identity of every member of its
community. Authorized by the laws of the United States Congress, the naval ship Neversink sets
forth as an agent of the state, a vessel whose duties are contained in the Articles of War and whose
entire crew exists to fulfill its errand of violence. The structure of the ship's society is a legalistic
one: social classes and their differentiated functions are determined by law, for an individual's
behavior the how, when, where, and why of his being is encoded in law. Theoretically, these
laws, if obeyed, keep the entire structure functioning and the ship sails on. If disobeyed, the laws
provide punishment, usually by lash.
In seeking to explore societal conflicts, therefore, the novel focuses on legal conflicts. Because the
law provides not only rules of conduct, but also enforcement of that conduct, it serves as soci
35
ty's foundation. The narrator examines several conflicts in particular. First, he is concerned
with the intractability of the law and those aspects of it which contribute to its rigidity.
Second, he explores the chasm between the ideal and the real, the distance between what the
law claims to be from what in practice it actually is. Within this disparity he sees the
perpetuation of specific injustices and raises the issue of obligation. Third, he focuses on how
the law creates conflicts which it then exploits to insure its own continuation. Although
ostensibly only naval abuses are investigated, the metaphor of the ship as microcosm used in
the novel permits the application of its critique to civil abuses as well in this case the
growing slavery crisis. The examination of legal contradictions finally leads to a consideration
of how the law, supposedly a design for order, can eventually militate against nonviolent
resolution of conflict. Although the law may be conceived of as a constructive tool, it can be
wielded with destructive force.
The functioning of the ship is based upon following rules, and these rules are not only mechanically
enforced and obeyed, but they are applied along class lines. In Chapter 20, "How they Sleep in a
ManofWar," White Jacket's description of the sleeping arrangements encompasses the cycle of a
seaman's life under naval law. What emerges is the image of a doomed prisoner: "Your hammock is
1 The five hundred hammocks are jammed together, narrowly curtailing human
your Bastile. . . ."
space: "Eighteen inches a man is all they allow you; eighteen inches in width; in that you must
swing. Dreadful; they give you more swing than that at the gallows" ( WJ, p. 80). Anyone who tries
to encroach upon another's place is quickly suppressed. When White Jacket tries to raise his
hammock above the others, his new position only creates discomfort at a higher level, and he
describes himself laid out on the hard board "with my nose against the ceiling, like a dead man's
against the lid of his coffin" ( WJ, p. 80). He extrapolates from the immediate to the general; any
attempt to change one's station from that legislated by arbitrary governments is folly.
And yet, although the daily physical demands upon officers are fewer than those placed upon
seamen, it is the wellbeing of the officers that is protected. Unlike the officers', a seaman's rest is
interrupted and he is not allowed the relief of a nap: "What is the reason, then that the common
seamen should fare so hard in this
36
matter" ( WJ, p. 84)? The answer is the enforced preservation of routine. "But the chief
reason is this a reason which has sanctioned many an abuse in this world precedents are
against it; . ." ( WJ, p. 84). Despite the fact that this rule is sometimes violated, as when the
ship rounds Cape Horn, it is still called upon to sanction customs that are harmful. To provide
for the health and comfort of the manofwar's man, special legal guarantees should be
enacted; otherwise the fulfillment of these needs is left to the discretion or caprice of
commanders. Thus a rule that is useless, harmful, discriminatory, and could be easily
changed, continues to operate mechanically because of precedent.
In Chapter 36, "Flogging not Necessary," White Jacket mounts a more intense attack on the negative
aspects of blindly following precedents. In this case, the common seaman as imprisoned sleeper
becomes a literal prisoner, subject to flogging. Just as in the earlier chapter the rule could be broken
when extreme conditions required it, so in this chapter alternative methods to flogging are offered.
Able leaders, such as Collingwood and Nelson, could govern without the lash; competent command
compels obedience. Mutiny itself is attributed to unnecessary physical brutality and the
dissatisfaction of the men becomes a justification for rebellion, just as it had been for Omoo aboard
2
the Julia and for Melville himself aboard the Lucy Ann. The possibilities of the future are extolled
rather than the follies of the past:
The world has arrived at a period which renders it the part of Wisdom to pay homage to
the prospective precedents of the Future in preference to those of the Past. . . . There are
occasions when it is for America to make precedents, and not to obey them ( WJ, p.
150).
Some critics have interpreted the narrator's messianic nationalism as expressed in the final
paragraph of Chapter 36 as satiric or ironic or both, mocking his own age's devotion to the
possibilities of democracy. Such critics see the author as actually radically opposed to democratic
possibility. James Duban, in Melville's Major Fiction: Politics, Theology, and Imagination, stresses
the dual nature of Melville's view of democracy, particularly his distrustful attitude towards the
3 John Gerlach in "Messianic Nationalism in the Early Works of Herman Melville: Against
people.
Perry Miller," emphasizes Melville's treatment of the American myth of
37
the redeemer nation as ironic and reads it as a satiric comment on the "national rhetoric." He
interprets this particular passage as a calculated exaggeration which exposes its own
foolishness. He claims that Melville used the terminology of the redeemer nation to gain
acceptance for his novel while his real view was that Christian idealism and practical
4
democracy were divergent.
While such criticism addresses undeniable contradictions in attitudes expressed in WhiteJacket, the
reasons suggested do not seem to reflect either the fervent tone of the passage or its crucial
placement at the end of a key chapter dealing with a position almost certainly close to Melville's
point of view. The tone of the passage, while stressing the prophetic mission of the nation,
emphasizes not the present moment, but the moment of the founding, and thus calls us back to what
the nation was supposed to be, if we heed the "political Messiah" who has come "in us, if we would
but give utterance to his promptings" ( WJ, p. 151). The ideal lives in potential within us.
Furthermore, the passage climaxes the general argument for the abolition of flogging, a position
Melville supported. According to Howard P. Vincent in The Tailoring of Melville's WhiteJacket,
Melville saw 163 floggings on the United States between his enlistment August 17, 1843, and his
5 And while Melville
dismissal October, 1844, four of them occurring on the first day of his voyage.
may have used reformist rhetoric as a subterfuge to gain acceptance by his readers, he nevertheless
expressed his personal satisfaction with the act of Congress, September 28, 1850, which abolished
flogging. In a letter to Evert A. Duyckinck, October 6, 1850, he wrote: "I am offering up devout
6 Thus it would seem that the passage serves to
jubilations for the abolition of the flogging law."
recall us as a nation to our own promise and direct us towards its fulfillment, not in an abstract way,
but by creating laws consistent with our national purpose. Melville's pessimism, then, seems
directed at the legal structure which prevents improvement.
One of the obstacles to positive change through law lies in the role of the judge; in the world of the
ship, this role is occupied by the captain. In Chapter 35, "Flogging not Lawful," the major attack is
against the blurred function of the judge/captain. In violation of the specifications of the
Constitution, the judge/captain is able to combine the legislative, executive, and judicial functions
without
38
being subjected to the judgment of his peers. Although naval law and the law of the land are
not the same, it is implied within the text that despite the greater need for order aboard ship,
naval law still ought to be consistent with the law of the democratic society of which it is a
part. Aboard the ship, the judge/captain determines, in unspecified cases, what the law is, who
violates it, and what punishment should be inflicted. Since decisions are left to his discretion,
there is no guarantee of application. This arbitrariness results in one set of "seacitizens"
the officers being exempted from a law that is held in terror over others ( WJ, p. 145). This
law, authorizing flogging, was generally equated with slavery because of the similarity of the
physical punishment inflicted upon those accused of violating the law.
Such overlapping of judicial functions was a feature of nineteenthcentury law. As Morton Horwitz
has shown in The Transformation of American Law, 17801860, the first half of the nineteenth
century was a period in which judges increasingly viewed law as an instrument of social policy. 7 In
the area of slavery, the rulings of important judges gradually reflected an emergent tendency toward
narrow interpretation of the law. Rather than merely applying law, however, they chose among legal
alternatives as well as made new law in cases involving issues not yet ruled upon. But unlike the
innovations in marketplace law, rulings in slave cases avoided innovation in preference for strict
interpretation of formal rules. Like the judge/captain aboard the Neversink, these judges ashore were
able to determine what the law was and apply it as they saw fit, oftentimes employing an arbitrary
process of decisionmaking.
The early slavery decisions of Judge Shaw are cases in point. Somewhat like the naval captain, he,
too, was controlled by the law. To a great extent, he acted as the law required him to, although at
times he found means to act otherwise. Personally opposed to slavery, he initially sought to avoid
cases dealing with it, and when he was unavoidably confronted with such cases, he gradually moved
away from rulings that reflected his personal belief to rulings that coincided with the prevalent
social policy of continued slavery.
Shaw's August, 1836, decision, in the case of Commonwealth vs. Aves, involving the liberty of the
sixyearold slave girl Med, was seen as an antislavery document by those opposed to slavery. It was
39
an unspecified case in the sense that "it was a wholly novel situation in Commonwealth
history, and in point of law was without precedent in any state or federal reports." The
question hinged on "the status of a slave brought only temporarily into a free state." Shaw's
answer applied the principle of freedom, not that of property. Since slavery was local and not
universal, and since Massachusetts had no positive law authorizing slavery, Shaw ruled that a
person brought to that free state could not be considered a slave. Because this individual was
not a fugitive, Shaw's ruling did not conflict with his interpretation of the Constitution. He
therefore made a choice among legal alternatives, this time choosing freedom. As Levy states
in The Law of the. Commonwealth and Chief Justice Shaw: "By his opinion in Med's case,
8
Chief Justice Shaw had established a monumental precedent in law."
As his soninlaw had
claimed in WhiteJacket, America could make precedents for the future.
Another case in 1836, this time involving fugitive slaves, similarly shows Shaw's selective use of the
law. Two black women, Eliza Small and Polly Ann Bates, were detained on a vessel in
Massachusetts, but claimed to have evidence of their freedom. A writ of habeas corpus was issued
by Shaw and directed against the captain. On the basis of the writ the question before the court was
restricted to the right of the captain to detain passengers, rather than the issue of fugitive slavery.
Shaw again decided the case in favor of freedom, this time basing his reasoning on the concept that
9 Shaw was disinclined to
a ship is not a prison; therefore, anyone illegally restrained was free.
enforce the fugitive slave law, and focussed instead on the issue of illegal detention.
But only six years later, the basis of Shaw's decisionmaking had significantly changed. In 1842,
Shaw denied Latimer, a fugitive slave, a writ of habeas corpus and ordered him to be held in custody
while his owner obtained necessary proof of ownership, something he had not permitted in the 1836
case. Justice Story, on circuit duty, ordered a twoweek extension of Latimer's detention, despite the
fact that this act involved the unauthorized and abusive use of a Boston jail. Abolitionists supporting
Latimer demanded his release, contending he could not be held without a warrant or evidence that
he was a slave, and that fugitive slaves could not be excluded from the state Personal Liberty Law of
1837. This time
40
Shaw did not decide in favor of freedom, but instead upheld the right of a slaveholder to have
time to obtain proof of ownership. According to Shaw, Latimer had no rights under the
Massachusetts Personal Liberty Law of 1837 because to recognize them would conflict with
the Constitution. He then returned Latimer to custody. The Liberator accused Shaw of
"kidnapping a guiltless and defenseless human" while The Law Reporter accused both Shaw
and Story of "using their offices to oppress their fellow men." 10 Despite the fact that Latimer
was not the first fugitive slave returned by Massachusetts, the legal machinery to make that
possible had been set in motion. As the slavery crisis intensified in the 1840's and 1850's, Shaw
chose different legal alternatives to decide similar conflicts in a proslavery direction.
Thus, several of Melville's specific criticisms of judicial authority seem analogous to Judge Shaw's
slavery decisions prior to the passage of the Fugitive Slave Law of 1850. He attacks the judge/
captain's misuse of habeas corpus, an attack similar to that launched against Shaw in 1842. He also
attacks the discrepancy between autocratic laws and the democracy of the country which
promulgates them. While Shaw had defended his decision against freedom as an example of
upholding the Constitution, Melville focuses on the anomaly of naval law: "It should not convert
into slaves some of the citizens of a nation of freemen"' ( WJ, p. 144). Whereas Shaw had earlier
ruled that a ship is not a prison, Melville defines the city/ship as a prison whose inmates do not
share in the political liberty to which they have a right. Seamen, like slaves, are not given "civil
immunities." Like Latimer, to whom Shaw denied the protection of the Personal Liberty Law, the
seaman is not protected by the law of the land: "For him our Revolution was in vain; to him our
Declaration of Independence is a lie" ( WJ, p. 144). As Shaw had changed his decisionmaking
process in slave cases, so "the Captain, instead of being a magistrate, dispensing what the law
promulgates, is an absolute ruler, making and unmaking law as he pleases" ( WJ, p. 144). There is
an implicit analogy between the magistrate who does not fulfill the ideal of law ashore and the
captain who fails to meet the requirements of the law at sea.
Thus the system of law insures its continued rigidity; its very structure inhibits change. Not only
does arbitrary judicial authority
41
prohibit universal application of the law, but it increases its own arbitrariness by withdrawal
into professionalism. Particularly in slave cases, antislavery judges such as Shaw claimed role
fidelity as the reason for individual decisions against freedom. He insisted that because he was
a judge, he was bound to act in specific ways which in turn justified his decisionmaking
process. But as Robert M. Cover has pointed out in Justice Accused. Anti Slavery and the
Judicial Process, "the rise of the rhetoric of justification coincides with the rise of a form of
advocacy that raised judicial fidelity to law as an issue for the first time." The claim of role
fidelity intensified with the need of the judge to reconcile his antifreedom rulings with his
profreedom feelings. The judge is likely to act thus because
he himself is educated to think in terms of the values underlying legality and ordered
processes. His education, his colleagueship with others of similar training, his day to
day experience with these processes lead him to be more alert than most to the potential
dangers to law. Moreover, because so much of his own life integrates those values, he is,
himself, threatened by threats to them. He is quite likely to react when they are under
attack or when he feels slippage. 11
In Chapter 55, "Midshipmen entering the Navy early," Melville discusses an analogous situation
within the naval system. Because midshipmen enter service early they are "exposed to the passive
reception of all the prejudices of the quarterdeck in favor of ancient usages, however useless or
pernicious; those prejudices grow up with them, and solidify with their very bones" ( WJ, p. 231).
When these men rise in rank, they carry these prejudices with them. Melville criticizes the
entrenchment of injustices within a selfperpetuating system and sees the mystification of its affairs
as a means of protective isolation. He calls for greater popular participation in the order and
function of the system. Because the people have been kept mystified by the technicalities of the
system, "many evils that otherwise would have been abolished in the general amelioration of things"
have been allowed to continue ( WJ, p. 231). He warns the people against a passive acceptance of
technical professionalism by a direct personal appeal:
let us beware of abandoning to their discretion those general municipal regulations
touching the wellbeing of the great body of men before the mast;
42
let us beware of being too much influenced by their opinions in matters where it is but natural
to suppose that their longestablished prejudices are enlisted" ( WJ, p. 232).
The antidote to role fidelity is a critically aware populace.
But by far the greatest legal tensions within WhiteJacket arise from the discrepancy between what
the law should ideally be and what it actually is. Ought the law to reflect man's conception of the
ideal, and if so, what happens when the ideal and the actual conflict? What then does man do? Does
he adhere to Judge Shaw's principle?
A bad law should be corrected only by legislative action, but so long as it remains in
force, it is to be respected as the law, and because it is the law, not grudgingly and
reluctantly, but with honesty and sincerity, because any departure from the fundamental
rule of conduct would put in jeopardy every interest and every institution which is worth
saving. 12
Or does he support Thoreau's view?
Must the citizen ever for a moment, or in the least degree, resign his conscience to the
legislator? . . . I think that we should be men first, and subjects afterwards. It is not
desirable to cultivate a respect for the law, so much as for the right. . . . Law never made
men a whit more just; and by means of their respect for it, even the welldisposed are
daily made the agents of injustice. 13
American attitudes toward the problem of obligation must one obey an unjust law? have always
been divided. According to William M. Wiecek in his article "Latimer, Lawyers, Abolitionists and
the Problem of Unjust Laws," our legal culture is woven of both natural law and positivist strands.
On the one hand, the strand of natural law can be traced to English common law commentators back
through St. Thomas Aquinas to Aristotle and Sophocles, that establishes that "a human law
contravening divine law is void and must not be obeyed." This tradition was affirmed during the
American Revolution and was woven into this country's founding documents. On the other hand, a
second strand binds the individual to the positivist notion of obligation:
Positivist respect for laws the preference if you will, for legality over justice when the
two conflict has dominated the American tradition since the 1790's. Conscientious
disobedience has appeared only occasionally and
43
briefly, quickly snuffed by a peculiarly American insistence on respect for law based on
republican ideology. 14
In fact, insistence on obedience to law was so influential that no serious formal opposition to the
Fugitive Slave Law of 1793 arose in the courts until the mid1830's, and then it led up to the more
intense conflict arising over the Latimer fugitive slave case in 1842, the same year Melville was
sailing home to America.
Both the strand of natural law and the strand of positivism form part of Melville's implicit critique
of the legal system as he viewed it at the time of the composition of WhiteJacket in 1849, a period
just before the passage of the Fugitive Slave Law of 1850, a positivist law to insure the enforcement
of what many saw as the morally unjust law of slavery. But while Melville puts forth a natural law
argument, he is also aware of the dangers inherent in this position and his conception of the legal
dilemma reflects the fundamental ambivalence of the American legal system itself. What the novel
emphasizes is the mutually contradictory nature of the two strands: the radicalism of natural law
leading towards dismemberment of the Union and the conservatism of positivist law exacerbating
the most glaring of societal conflicts.
White Jacket invokes the rhetoric of natural law most forcefully when dealing with the issue of
flogging in the Navy, an issue related to the treatment of slaves. This conflict between the ideal and
the actual raises the questions of obligation and of the justification of disobedience or mutiny. In
Chapter 35, "Flogging not Lawful," the language of Blackstone is quoted to support the supremacy
of a law "coeval with mankind, dictated by God himself, superior in obligation to any other, and no
human laws are of any validity if contrary to this" ( WJ, p. 145). He cites as one of the fundamental
principles of Justinian "that to every man should be rendered his due" ( WJ, p. 145). But since this
principle is violated in the Navy and every man is not rendered his due
according to Blackstone and Justinian, those laws have no binding force; and every
American manofwar'sman would be morally justified in resisting the scourge to the
uttermost; and, in so resisting, he would be religiously justified in what would be
judicially styled 'the act of mutiny' itself ( WJ, p. 145).
Since flogging is opposed to the essential dignity of man, since it is unequal in its operation, and
since it is opposed to democratic insti
44
utions, it is denounced by White Jacket as "religiously, morally, and immutably wrong" ( WJ,
p. 146).
The argument for the immediate abolition of flogging is a moral one; since "it is a matter of right or
wrong" a radical solution is advocated no matter what the consequences. "No matter if we have to
dismantle our fleets, and our unprotected commerce should fall a prey to the spoiler, the awful
admonitions of justice and humanity demand that abolition without procrastination; in a voice that
is not to be mistaken, demand the abolition today" ( WJ, p. 146). Thus the rhetoric of natural law,
which was echoed by abolitionists, supports and justifies mutiny or training "murderous guns
inboard" ( WJ, p. 400).
Yet, as has been noted by various critics, in this book Melville's attitude towards disobedience to
authority or mutiny seems ambivalent. 15 On the one hand, he justifies disobedience to unjust laws
whatever the consequences on the basis of morality. Tommo had jumped ship to evade an
abusive captain, as had Melville himself. Omoo had also participated in a mutiny, as Melville in fact
had not. In WhiteJacket, Jack Chase leaves his ship and returns with impunity. Ushant successfully
resists the captain's orders to cut off his beard. White Jacket himself instinctively refuses to submit
to the indignity of the lash, instead fantasizing the enactment of a murder and suicide.
On the other hand, in WhiteJacket, the moral justification of mutiny is balanced by a rhetoric of the
possible. Melville's tempering of the rhetoric of morality serves as a way of reducing the conflict
generated within a system of cogwheels that grind against one another instead of functioning
smoothly as a whole. Although he seems to support the instant abolition of injustice, through
disobedience if necessary, he seems concerned with the way the system offers only two choices:
either training the guns inboard or pursuing a gradualist course of expediency. As in the rounding of
Cape Horn, one can either head straight through the tempest, suffering minor injury, or turn one's
back to it, remaining vulnerable at one's weakest point. Melville seems to be wishing to avoid the
violent conflict that his own analysis generates, not because there are no alternatives to violence but
because the system seems to perpetuate this bifurcated vision of the world.
45
While Melville seems to have tempered the rhetoric of natural moral rights appropriated by
the abolitionists because it exacerbated already dangerous conflicts, he also seems to have
been skeptical about the results of more gradual approaches. In Chapter 90, "The Manning of
Navies," he refers to a specific judgment made by Judge Shaw involving the freeing of the
slave Robert T. Lucas from the ship United States in October, 1844, and here he demonstrates
how a positivist application of the law can intensify the conflict it seeks to reduce. In this
actual case, when the United States anchored at Boston Navy Yard two shipmates of Lucas
informed Judge Shaw that the slave wished to be free. Shaw freed him from his owner,
Fitzgerald, the purser, ruling that "as therefore Lucas is not lawfully enlisted in the United
States service, and cannot be held here by his former owner, he must be discharged." 16
Melville's reference to his fictional case involves the slave Guinea who was freed from his
master, the purser, aboard the Neversink. Unlike the actual ship, this one docks in Virginia, the
home of the slaveholder and a place where slavery was legal, and Melville thus intensifies
reaction to the judgment by placing it in the world of the slaveholder.
Melville's reference to the incident has been variously interpreted. Priscilla Allen Zirker, in her
article "Evidence of the Slavery Dilemma in WhiteJacket," sees Melville as anti abolitionist in his
admiration for the "forbearance" of the slave master. She views Melville as more conservative than
Shaw and calls his depiction of this case an "indication of Melville's temporary ambivalence on the
Negro question." 17 More recently Carolyn L. Karcher, in her book Shadow Over the Promised
Land, has discussed Melville's supposed ambivalence on the race issue in terms of the division
between his conformist and rebellious selves, and sees his method of criticizing slavery as covert,
undermining what he seems to be supporting. 18
While Melville does seem to be sympathetic to the slaveholder for his fair treatment of his slave, he
is also sympathetic to the slave, for the indignity of his condition, seeing the conflict from the
perspectives of both North and South as he was to do later in Battle Pieces. His recognition of the
antagonism of the South toward such judicial decisions was correct, and such judgments became a
factor leading to the Southern demand for the Fugitive Slave Law of 1850. However, his portrayal of
the case does not substantiate a
46
proslavery position. Rather it reveals Melville's complex understanding of the
interrelationship of both sections in this controversy. Melville indeed portrays Guinea only in
a stereotypical fashion with "his ebon face fairly polished with content; ever gay and hilarious;
ever ready to laugh and joke . . ." ( WJ, p. 379). Melville does not show, as he was to show in
Babo, what feelings were marked by such a demeanor. Guinea is described as "actually envied
by many of the seamen. There were times when I almost envied him myself" ( WJ, p. 379).
The slave seems to receive favored treatment from his master, as his body servant who is not
required to do more strenuous physical labor.
But one of the things Guinea seeks to avoid is witnessing floggings, evidence of his humanity rather
than dandyism. Similarly it has been pointed out that many abolitionists did not see the connection
between slavery and free labor, often sympathizing with the injustices to the slave but emphasizing
the virtues of the hard work and poverty of free workers. 19 While the seamen of the United States
may have been envious of the slave, two among them actually initiated the call for his freedom. It
was not the man before the mast who had a vested interest in the slave's bondage, but the officer.
Guinea's master, while perhaps goodhearted, was the ship's purser, a role Melville earlier described
in Chapter 48 as one that entrusted him with all the crew's accounts. He is in closest communication
with the authoritarian commodore, and derives his great importance from "having under his charge
all the financial affairs of a manofwar. . . . Indeed, we find in every government monarchies and
republics alike that the personage at the head of the finances invariably occupies a commanding
position" ( WJ pp. 2045). It is the legally sanctioned economic system of slavery that here is being
scrutinized, rather than the limited actions of one kindhearted slave master and one Northern judge.
The episode dealing with the surgeon's heartless treatment of a wounded man (Chapters 6063)
encapsulates the central dilemma of how to remedy defects. Does one pursue the drastic course of
dismemberment or rely upon more gradual alternatives? Why are moderate approaches ineffective,
and why does the authority figure fail to perceive the nature of the problem that confronts him? This
broadly satirical episode has been regarded as somewhat out of keeping with the prevailing
documentary tone of the novel.
47
Critics have viewed it as more imaginatively realized and hence as indicative of the author's
future literary development. It also was not based on an actual episode aboard the United
States and seems not to have been based on outside sources. 20 The almost manic level of
parody that is achieved and sustained perhaps owes its force to the fact that Melville was able
to embody a crucial conflict among various approaches to problemsolving in a dramatized
form. But while these chapters contain elements of conflict, there is no resolution offered, only
the explosion that results from colliding forces.
The episode begins when a seaman is denied liberty for unspecified reasons. He unlawfully leaves
the ship, thereby becoming a fugitive. After being warned by his officers to return, he refuses and
they subsequently train "murderous guns inboard," shooting him and wounding him in the leg. The
"wounded fugitive" is then returned to the ship for treatment. The precipitating event thus parallels
the impending slavery crisis.
Cuticle, the surgeon responsible for treating the fugitive's wound, while not a realistic character,
possesses several features that determine his (mis)handling of the case. He is drained of life and
made up of a patchwork of false parts. In fact, he is more an artificial facade than a human being.
And in a sense, his profession, like that of the judge/captain, has made him what he is. "His
apparent heartlessness must have been of a purely scientific origin," and his "marvelous
indifference" is in large part attributable to "his enthusiasm in his vocation" ( WJ, p. 251). In his
stateroom, chief among his possessions is a cast of the horned head of an elderly malformed
woman, and this cast is the first object that he sees upon awakening. Yet he remains completely
untouched and unaware of its import. The head embodies the contradictions of human existence:
horror and meekness, sadness and beauty, sin and sinlessness. It potentially inspires at first horror
but then sympathy, and calls forth an awareness of the sad necessities of human life. It seems to
encompass how Melville may have viewed societal conflict, that he may have regarded it as "some
sin growing out of the heartless necessities of the predestination of things; some sin under which the
sinner sank in sinless woe" ( WJ, p. 249). And yet the surgeon remains unmoved by the cast, using
its tragic feature, its "hideous crumpled horn" as a hatrack ( WJ, p. 249).
48
The consultation of manofwar surgeons (Chapter 62) is an exaggerated analogue of the
prevailing arguments concerning how to deal with the problem of slavery. Cuticle expresses
the most radical point of view, abolitionism reduced to absurdity. Rather than remove the ball
from the wound, he advocates dismemberment, or a break in the body: ". . . there can be no
doubt that the wound is incurable, and that amputation is the only resource" ( WJ, pp.
25253). His colleagues, however, disagree. Dr. Bandage argues on behalf of constitutional
strength, claiming that, although the patient's "constitutional debility" is extreme, he is
perhaps strong enough to survive ( WJ, p. 258). Wedge rejects amputation because the nature
of the wound is not serious enough to impair the limb. He echoes those who claimed that
slavery, while a serious problem, was not central enough to endanger the Union. Sawyer favors
a gradual remedy, believing that if a minor procedure is risky, a major one might prove
deadly. He recommends gentle tonics "locally applied" ( WJ, pp. 25354). Here he echoes
moderate Whigs who, although antislavery, feared disunion. Thus the American "Whig
Review of February 9, 1849, advised its readers to regard slavery as "a local affection and not
a general disease. It is doubtless a curse where it is but only there. . . . It is chronic only to a
limb, not to the main body." 21 Dr. Patella, the last consultant, summarizes the moderate view:
the wound is dangerous, the limb is threatened, but the patient has a strong constitution. He
might rally as he is. But deference to Cuticle prevails. He performs the operation, the body is
"parted in twain," and the patient abruptly dies. The episode is analogous to the slavery
question and the macabre finale foreshadows the destructive nature of the clash between
extreme approaches to the abolition of slavery and the failure to rind gradual methods of
ameliorating a threatening condition.
Thus the very nature of the alternatives presented by the legal system militates against a peaceful
and orderly resolution of conflict. The manofwar world is "full of strange contradictions," but the
legal structure that sustains it does not adequately deal with circumstances beyond legally defined
categories. Instead, it accentuates and exploits these contradictions. Like the Constitution which
authorizes it, the naval code uses a system of checks and balances to create conflicts that reinforce
its own power. The manofwar's man is policed by the force of the marines, a situation that
49
breeds "mutual contempt, and even hatred, subsisting between these two bodies of men both
clinging to one keel, both lodged in one household" ( WJ, p. 374). And this dissension is
considered the "height of perfection of Navy discipline" ( WJ, p. 374). The officers or
authority figures know that mutual antagonism between men who really share common
interests insures that the status quo will be maintained, because each class will violently turn
against the other at the threat of revolt: "Checks and balances, blood against blood, that is the
cry and the argument" ( WJ, p. 374).
The class conflict engendered and maintained aboard the ship parallels the strife between sections
of the Union, which also share one common household: "The whole body of this discipline is
emphatically a system of cruel cogs and wheels, systematically grinding up in one common hopper
all that might minister to the moral wellbeing of the crew" ( WJ, pp. 37475). These evils are
produced not only by laws but by the body that gives them being, and it is suggested that such
"organic evils" are incurable and will dissolve only with the body they live in. Melville had
indicated in a letter to Judge Shaw, October 6, 1849, that in composing WhiteJacket, while he had
refrained from writing the kind of book he wished to, he had not repressed himself much, but
"spoken pretty much as I feel." 22 Thus it seems that his analysis points to the radical conclusion he
sought to avoid, and perhaps he would have been even more extreme in expressing himself had he
not hoped for popular success from the publication of his novel. Although he abhorred the idea of
the dissolution of the Union, he perceived that without amelioration of existing conflicts, conflicts
which were being exacerbated by the legal system, such a break in the state would occur.
Any possibility for improvement would seem to lie within the individual who embodies the traits of
the natural aristocrat inherited from the Jeffersonian democratic ideal, men like Jack Chase, Ushant,
and perhaps White Jacket himself. Such men of moral sensitiveness and dignity thwart the operation
of the system of cruel cogs and wheels by making their lives a "counter friction" to check the
machine. 23 Such men, living in the world of slave wages or slavery, offer a reproach to the power
structure that seeks to keep them in bondage. Through the illiberal laws that oppress him as well as
through the evils he inflicts upon himself, man has
50
erected a state that is unfit to live in. "Outwardly regarded, our craft is a lie. . . the vast mass
of our fabric, with all its storerooms of secrets, forever slides along far under the surface" (
WJ, p. 399). In WhiteJacket Melville was still able to see value in analyzing the substructure
of the craft in the hope of preventing the destruction that would come to the state, as
symbolized by the Pequod.
51
Chapter 4
MobyDick: Imaginative Discourse as a Challenge to Legal Discourse
"A veritable witness have you hitherto been, Ishmael."
( MobyDick, p. 373)
MobyDick, like WhiteJacket, deals with the issues of arbitrary authority, injustice, and the extent
to which violence is an appropriate form of action. There are, however, several distinctions between
these two novels, which were conceived in relatively the same time period but were executed in
vastly different ways. While WhiteJacket ends with a plea for peaceful resolution of conflicts
despite its radical critique of the sources, MobyDick ends with the total destruction of the
ship/state, leaving only the story told by a lone survivor whose experiential perspective has been
shaped by his journey. In structural terms WhiteJacket relies on a predominantly documentary style
with only brief interludes of alternating tone, whereas MobyDick is a complex compendium of
voices, styles, and perspectives. While WhiteJacket effectively progresses along two related but not
quite integrated narrative lines (the story of the manofwar world and the story of White Jacket's
personal development), MobyDick effectively blends its two narrative strands (the story of Ahab's
quest and the story of Ishmael's selfdevelopment) into a unified whole.
To a considerable extent, significant features of both the content and form of MobyDick reveal
Melville's continued interest in and concern with the law, both as an institutional structure for
determining and regulating human behavior and as a form of epistemology. I shall argue that
specific contemporary legal issues, namely those dealing with race and labor relations, influenced
the content
53
of the book, perhaps even as Melville was in the process of writing it, and that his skepticism
concerning legal methodology significantly shaped aspects of the narrative form of MobyDick.
I shall also suggest that while MobyDick presents a pessimistic analysis of the conflicts it
engages, this attitude is counteracted by the activity of storytelling itself. The process of
substituting the authority of the imagination or art for the authority of domination or law,
which was begun as early as Typee and was present in subsequent novels, here reaches its
culmination as the exuberance of Ishmael's creative telling triumphs over the power of his
disappointment.
Most significantly fictional narrative is tested against legal narrative as an alternative method of
finding and asserting truth. The storytelling imagination asserts itself as artifice to expose legal
reasoning as artifice and thus gives primacy to fictive truth over legal fiction. Although fictional
narrative and legal narrative are similar, the differences between them enable fiction to explore
some of the limitations of law. Both forms of narrative tell a story, often several competing versions
of a story. Both need a receiver of the story; in fiction it is the reader while in law it is the judge and
jury. An interpretation or decision will have to be reached which the dominant group agrees to
accept as valid, and the narratives will be written down and thus be subject to the strengths and
limitations of verbal expression. The resulting interpretation or decision will not necessarily be
permanent but will be open to the modifications of the interpreting culture.
But the distinctions between these two forms are as striking as their similarities. Fictional narrative
emerges through the creator of the novel and is thus totally controlled by a single authority. While
narrative events are taken to be imaginary, legal events are real, even if their validity cannot be
completely established. Therefore, while a critical interpretation of a fictional work may represent
the dominant thinking of the contemporary culture, it does not necessarily have a direct impact on
how one can act in the real world. The legal decision has direct implications for human behavior.
Thus the interpretation made by a reader of fiction encourages a free and imaginative play among
contradictory ideas, not for the purpose of reaching a definite end but for the purpose of going
through the interpretive process. In fiction there is no one right answer. But in law, the judge and
jury must formulate something
54
determinate and thus the emphasis is upon reaching an end rather than on going through a
1
process.
Fiction, therefore, provides a unique form in which to explore the legal methodology which it
resembles but differs from. It can also explore deficiencies in legal narrative by emphasizing its own
reliance upon process rather than goal. The author as controller of all aspects of his narrative thus
becomes the supreme ruler, one who exercises his power in the service of insight rather than
domination. He can use his powers of manipulation to reveal his method as artifice and by
substituting "true" artifice, fiction, for "false" artifice, law, create an alternative imaginative order.
Several controversial legal issues in the area of race relations may have influenced the content of
MobyDick. Although there is no direct evidence that Melville actually knew or read about these
cases, it is probable that he had them in mind. His close relationship with several prominent legal
figures, the general controversy surrounding the issue of slavery, and the implications within his text
support this contention. In addition, several legal decisions involving race relations fell within the
province of Judge Lemuel Shaw, and may have been woven into the text of MobyDick.
The first of these issues involved the separatebutequal doctrine as stated in the case of Roberts vs.
City of Boston, 1849, which dealt with the right of a black child to attend an all white school within
the district in which she lived. Charles Sumner argued for the plaintiff on "a single proposition the
equality of man before the law." He also defended this position by discussing the mutual benefit of
total equality between the races. Sumner stated:
Prejudice is the child of ignorance. It is sure to prevail where people do not know each
other. Society and intercourse are means established by Providence for human
improvement. They remove antipathies, promote mutual adaptation and conciliation, and
establish relations of reciprocal regard.
Chief Justice Shaw delivered the unanimous decision of the court that upheld school segregation.
Inverting logic in favor of his own inclinations he wrote an opinion indicating that not all
individuals have the same legal rights. In response to Sumner's view that equality is a universal
benefit, Shaw stated that prejudice would probably be intensified "by compelling colored and white
2 Despite the
children to associate together in the same schools."
55
fact that a new statute was enacted in 1855 removing legal racial discrimination in
Massachusetts, Shaw's separatebutequal doctrine prevailed as the law of the land for more
than a century.
Melville, in the opening section of his novel, is arguing for racial equality through his depiction of
the relationship between Ishmael and Queequeg. Although this opening section of the novel is taken
by many readers as one of its most integral parts, Harrison Hayford has suggested that this key
3 Perhaps Shaw's
section may have been composed after the book was nearly completed.
conservative perspective along with the views of many outspoken abolitionists of the time shaped
Melville's radically egalitarian racial views. From Jefferson through Lincoln, advocates of equal
rights among different races never fully expressed a belief in personal equality. Rather, they saw the
white race as innately different from and superior to the black race, and, therefore, they did not
foresee the potential of personal as well as legal equality as in the "wedding" of Ishmael and
Queequeg. Instead many envisioned an inevitable separation between the races, and some suggested
a return of freed slaves to Africa or the founding of a new African state.
Furthermore, Melville is exceptional in his time in his concept of racial equality as mutually
beneficial and in fact vital to both races. Not only did he reject separatism but like Sumner, who
defended integration, he emphasized the need for mutual interaction. Melville implies that it is good
for Ishmael to undergo an educational process in his relationship to the South Seas cannibal. His
encounter with the alien stranger progresses from repulsion, fear, and anxiety to acceptance, insight,
and pleasure. This unexpected relationship redeems Ishmael's maimed childhood as he recalls it in
Chapter 4, "The Counterpane," and it strengthens him as a man by offering him an alternative view
of human relations that allows him to attain an acceptance of life. In his relationship with Queequeg
melancholy gives way to happiness, isolation to companionship, and exclusionary differences
disintegrate into mutual respect. While the separatebutequal doctrine emphasized either that all
people were equal but inherently different, or that all people were not equal but were entitled to
similar rights, Melville's text suggests that all people are equal, entitled to equal rights, and
potentially enriching to one another.
56
Turmoil over a second issue, the remanding of fugitive slaves, may have been even more
significant to the thematics of MobyDick than that involved in the separatebutequal opinion.
In this issue Chief Justice Shaw played a leading role. A new Fugitive Slave Law had been
passed by Congress as part of the Compromise of 1850. Until this time no slave had been
returned by the state of Massachusetts despite the growing solidarity between Eastern textile
interests and Southern cotton growers. But this changed with the capture of the slave Thomas
Sims on April 3, 1851, while Melville was still working on his novel. Shaw's opinion on this
case was the first court decision to support the constitutionality of the Fugitive Slave Act of
1850. Basing the constitutionality of the law upon the necessity of maintaining the Union,
Shaw ordered the slave returned to his owner, and on April 11, 1851, Sims was remanded to
the custody of the agent who claimed him. Shaw himself had been forced to enter the
courthouse under the chains that were put up because of the controversy generated by the
case. Shaw thereby became a fitting symbol for the imprisonment of the judicial system within
4
the law.
Like the recent Sanctuary cases the fugitive slave issue centered upon the conflict
between moral right and legal right, justice and law, conscience and rule.
The first return of a fugitive slave from a free state may also have influenced the portrayal of the
relationship between Ishmael and Queequeg, as well as the creation of other nonwhite characters
5
within the novel.
Melville's characters seem to refute the implications of this legal decision and
demonstrate the weaknesses of the society which produced it. Queequeg, rather than being servile,
is strong and selfassured, in many ways superior to those around him. Rather than harboring
animosity towards those who attempt to humiliate him, he risks his own life to save another, as in
his first diving episode. Unlike most of the Christian characters who verbally profess religious
commitment but actively exploit others, Queequeg enacts Christian ethics without verbalizing them.
Similarly, Queequeg's behavior towards Ishmael is the direct antithesis of that of the acquisitive and
exploitative capitalist society from which Ishmael is in flight. Queequeg represents a communal
alternative, sharing bed and breakfast with his friend as well as close and comfortable feelings of
friendship. Such a characterization suggests that a man in his full realization
57
can never be the property of another, but his friendship can be acquired through mutual
sharing. The society on board the Pequod, which embodies features of the capitalist system, is
more driven by profit than fellowship, and in this sense it seems doomed to selfdestruction.
Melville's depiction of several characters of color further develops his identification with and
respect for racial and ethnic differences. Melville seems to have had a unique acceptance of
difference as well as a deep understanding of the results of racial discrimination for the victim. 6
Instead of simply perpetuating racial stereotypes in his creation of nonwhite characters, Melville
demonstrates that depending upon his fictional purpose he can either draw upon or subvert them.
His beliefs, however, are not dictated by his fictional purposes. His beliefs enable him to use and
manipulate existing stock figures or to undercut them. Because his ideas about different people may
have been broader than those of many contemporaries, he could adopt or adapt prevailing
stereotypes.
Dagoo, the black harpooneer, is a strong dominant figure, foreshadowing the more complex Babo in
"Benito Cereno." In Chapter 40, "Forecastle Midnight," Daggoo asserts himself with violence,
but a squall intervenes. "Who's afraid of black's afraid of me! I'm quarried out of it! . . . White skin,
7 Daggoo, although a free black and a respected member of the crew, is still subjected
white liver!"
to racism as the Spanish sailor responds: "Their race is the undeniable dark side of mankind
devilish dark at that" (p. 153 ). Dagoo represents the prospect of violent uprising resulting from
racial persecution by the dominant white society. Pip, Daggo's seeming opposite in this respect, is
indeed passive and submissive, but in his docility he becomes representative of humanity. Pip and
Dagoo together represent two opposite but integral aspects of a slave's condition although neither
one is a slave. Pip's abject weakness stands in stark contrast to Dagoo's powerful assertiveness. Even
Fleece exhibits this dual nature. He seems a fawning lackey but is actually an astute commentator on
Stubb. He correctly draws an analogy between the rapacious sharks and his own devouring master.
Thus Melville seems not to have adhered to the belief that the enforcement of the Fugitive Slave
Law would contain the problem of slavery and thereby secure the solidity of the Union.
58
His nonwhite characters in MobyDick reveal the opposite possibility. Slaves may not
necessarily agree to be defined by the law, and, if they attempt to redefine themselves as men,
the Union may face violent threats to its existence.
It has been noted that Father Mapple's sermon may have been influenced by Judge Shaw's
enforcement of the Fugitive Slave Law. Father Mapple, as the pilot of his congregation or the
religious leader of his people, feels compelled to speak the truth. He must tell his story just as Pip
must speak the truth to Ahab and as Ishmael must speak the truth to the reader, and as Shaw could
8 The sermon culminates in a declaration
have been expected to speak the truth in his role as judge.
of the struggle between this world and Gospel duty, a dilemma to be more fully explored in Melville
next novel Pierre. But although the later novel would be more ambiguous about the relationship
between earthly and heavenly demands, in MobyDick Melville seems to offer at least a partial
answer. Father Mapple elevates God's absolute justice over man's relative law and preaches
obedience to a higher moral law even if it conflicts with the desires of the self:
Delight is to him who gives no quarter in the truth, and kills, burns, and destroys all sin
though he pluck it out from under the robes of Senators and Judges. Delight top
gallant delight is to him, who acknowledges no law or lord, but the Lord his God, and is
only a patriot to heaven" ( MD, p. 51).
Melville's implied criticism of Shaw seems to be that he acted expediently rather than justly and
obeyed the dictates of the world's demands rather than God's. The Pequod's captain, like mid
nineteenthcenturyAmerica, also ignores the implications of the sermon and thus seems doomed to
his own destructive course.
Significantly, Father Mapple's sermon is followed by Chapter 10, "A Bosom Friend," in which the
bond between Ishmael and Queequeg is sealed through love. It is as if Ishmael and Queequeg are
practicing the theoretical ideal implied in the Christian framework of the sermon. Melville has been
able to create a temporary space where "those old rules" do not apply ( MD, p. 53). Ishmael himself
offers a little sermon in which he pragmatically applies the Christian ethic to everyday life: "And
what is the will of God? to do to my fellow man what I would have my fellow man do to
59
me that is the will of God" ( MD, p. 54). Thus ironically, the active element of Christian
benevolence finds expression through his union with the pagan. It is by embracing the
unfamiliar and by identifying the unfamiliar with one's self that Ishmael is able to experience
"our heart's honeymoon," to overcome his aggressive drives, and ultimately to survive his
voyage. Thus the personal relationship between Ishmael and Queequeg gives practical
expression to the theoretical ideal of obedience to a higher law.
Still a third aspect of law in which Judge Shaw gave formative rulings was in the area of labor
relations. Since the world of MobyDick is a worker's world it is interesting to see how contemporary
legal issues emerged within the text. Once again, Melville takes a position in conflict with that of
his fatherinlaw, and presents the negative effects of Shaw's policies as well as a potential
alternative to them. In 1842, Shaw issued the leading American opinion on the fellowservant rule
in the case of Farwell vs. Boston and Worcester Railroad. By strengthening and clarifying earlier
rulings, Shaw established the principle that employers were not responsible for accidents caused by
their employees, despite the longstanding rule of common law that a master is liable for injuries to
his servants. Shaw's decision seems to have been motivated by several basic premises. He wanted to
encourage the building of railroads by reducing industrial liability at a period when the
establishment of the railroads was not yet assured. He believed that the overall economic wellbeing
of the nation would be enhanced by the financial strength of major industries. He was also
motivated by his notion of individualism, which was based upon the idea that individuals were not
really free and independent unless they had the right to take highrisk jobs and to make their own
free choices. He did not take into account that highrisk workers were often motivated by economic
necessity rather than free will, and thus the effect of his fellowservant ruling was not only to aid
9
industry but to harm the worker.
The world of the Pequod is a paradigm of the world of nineteenthcentury capitalism. 10 Ahab
himself is likened to a railroad in both the mechanical thrust of his intent and in the rigidity of his
mental processes. His crew is composed of workers in the dangerous industry of whaling. It is a
highrisk occupation in which the master, Ahab, employs techniques of industrial capitalism to
60
control and motivate his men. Not only do they receive a certain fraction of the profits and
consequently benefit from the killing of whales, but Ahab is also astute enough to offer
incentives, such as the doubloon, to motivate them. Yet Ahab's use of many techniques of
capitalism illustrates the very dangers inherent in these methods. Capitalist managers would
be interested in employing the men for the purpose of increased productivity; Ahab
establishes the same kind of control but changes its purpose. Instead of harnessing labor
power in pursuit of profit, he channels it in pursuit of his own obsessive quest for the whale.
Yet his methods of control are similar to those of industrial capitalism. Therefore, the most
dangerous aspect of the use of men as tools is that the same control mechanism used in labor
production can be used for any end desired by the master. Thus worker control can be
diverted from financial profit to one man's personal obsession. The leader is able to dominate
his men by encouraging them to act assertively but in submission to his will.
While the organization of labor aboard the Pequod reflects acquisitive capitalism, Melville also
suggests an alternative to systematic exploitation. Bound by the oftentimes invisible network of the
whaleline, all men are interconnected in a kind of mechanical system like that of "a steam engine in
full play" ( MD, p. 240). This is seen as part of the human condition: "All are born with halters
round their necks . . ." ( MD, p. 241). There is no such thing as total freedom, although it may
temporarily exist as an illusion. But within this net of circumstance there is a choice of responses.
One response depicted in Chapter 72, "The MonkeyRope," juxtaposes mutual interconnectedness to
competitive individualism. The rope that links Ishmael to Queequeg as the harpooneer descends
onto the whale's back is a special feature of the Pequod. We are informed in a footnote that it was
only on this ship that "the monkey and his holder were ever tied together." ( MD, p. 271). This
"original usage" was introduced by Stubb to gain maximum efficiency from his workers by having
one life literally tied to another ( MD, p. 271). Yet Ishmael's imagination transforms this peril into a
source of strength, as interconnectedness becomes a form of weddedness. Unlike Shaw, who linked
individualism to free will and insisted that each man was liable only for himself, Melville has
Ishmael reflect that at best free will is limited and that each
61
man has a "connection with a plurality of other mortals" ( MD, p. 271). No fate is totally
isolated, and to act as if it were otherwise is to end like Ahab, strangled in the line of
connectedness rather than reborn through it. Limitation is a fact of life, but man can make his
existence more bearable through companionship with his fellows.
Not only did specific legal issues influence the content of MobyDick, but Melville's skepticism
regarding legal methodology significantly shaped aspects of the narrative form of the novel. The
development of Melville's creativity and its fulfillment in the novel MobyDick has elicited almost
as many explanations as there have been critics of the book. Exactly how and why Melville was able
to attain the achievement within this book while his earlier novels had offered only "portents" will
probably never be completely explained. Any novel of such complexity by definition leaves a margin
for the unknown. In addition to the many explanations that have been offered, it is possible that as
Melville became increasingly dismayed about political problems that were sanctioned and often
intensified by law, and as he saw national promises unfulfilled, he became more and more interested
in the nature of rules themselves. Melville's disillusionment with the law may have contributed to
his method of disrupting the plot, thereby hindering its goaloriented thrust towards resolution of
conflict. His interest in legal methodology also may in part account for his emphasis upon narrative
process and his choice of form in subsequent works. Specific narrative features employ aspects of
legal methodology only to disrupt them, as fictional narrative is tested against legal narrative as an
alternative method of finding and asserting truth.
It seems clear that many of Melville's narrative techniques significantly depart from popularly
accepted standards of the novel. Nina Baym, in her recent work, Novels, Readers, and Reviewers,
argues convincingly against the widely accepted notion that the antebellum American public was
not receptive to novels and, therefore, did not provide an available audience for new American
books. Contradicting several dominant theories of American literary history, she claims that
Americans read widely, perhaps more widely than they do now, but that they preferred certain kinds
of novels. The taste of readers was broad and varied. But certain specific rules had to be followed by
the novelist. Among the most
62
significant were that character development be unambiguous, that plot development be strong
and interesting, and that the position of the author in relationship to his text be unobtrusive
and nonassertive. She notes that writers like Melville and, to a lesser extent Hawthorne, were
not among nineteenthcentury favorites, either because they could not or would not write the
kind of books sought after by an eager reading public. 11
But this explanation is not consistently applicable to the works of Melville. His first book, Typee,
was inspired by the strength of his storytelling ability and he was encouraged by his family circle to
write up the adventures that they had been thrilled to hear. Melville was able to develop plot, which
is always an important element of his work, but for personal reasons, he seems to have "preferred
not to" give the audience what it wanted. In his letters he expresses most enthusiasm for the
relatively plotless Mardi and moderate contempt for the more conventional Redburn and
WhiteJacket. 12 Certainly Melville's narrators, from Typee through MobyDick and beyond, are
anything but shy, retiring, and dissociated from the text.
Thus here is an author who in his major work seems directly intent on violating popular standards of
the novel. The magazines that published his stories also printed reviews which, along with reader
preference, established important criteria for this new and admired literary genre. In refusing to
satisfy reader expectations and to obey accepted rules, Melville implicitly called these very
assumptions into question. It seems, then, that one of the dominant narrative features of MobyDick
was to defy rules, the literary corollary of defying laws. Fiction as an imaginative form of writing
could, by its very nature, subvert reader expectation. Unlike legal narrative, which depends upon its
adherence to established order, fiction could disrupt accepted norms, interrupt chronological order,
plot progression, and character development. In so doing fiction has the ability to reorient our usual
perception of events and their meanings and hence becomes an alternative method of truthseeking.
Unlike legal narrative, which leads us in an ordered way to a definite conclusion, fiction leads us in
an imaginative way to multiple possibilities. "I write precisely as I please," the narrator of Pierre
was later to say, and so it was with Ishmael as well as his creator. 13 By so doing the author was able
to impose a new order,
63
that of imagination, on the repressive and potentially destructive order of reasoned rules. The
novel, while a product of its culture, could also be critical of that culture.
Elements of narrative procedure thus undercut aspects of legal form in order to give primacy to the
power of imaginative truth over the limitations of legal truth. "A veritable witness have you hitherto
been, Ishmael," our narrator states, and indeed his methodological procedure is to give an
eyewitness account of his own direct experience ( MD, p. 373). Like a witness in a court of law
asked to state his name and swear to the truth of his testimony, he says, "Call me Ishmael" which,
as has been noted, may or may not be his real name. 14 Thus from his very first words, the reader
may question the validity of the narrator's account and by analogy the validity of all such testaments
to truth.
Similarly, the elements that frame his tale, "Etymology," "Extracts," and the "Epilogue" also cast
doubt upon the truthfulness of the narration. The etymological section deals with the unstable
nature of the word and thus calls into question the whole idea of an enduring story. The basic unit of
thought expression, the word, on which all systems are constructed and transmitted, is itself
precarious. Yet the transitoriness of language is immediately balanced by the following section of
extracts that celebrates verbal creations as artifice. It contains a collection of statements arranged to
create an impression rather than a verdict, a method Ishmael will use repeatedly in his narrative,
especially in Chapter 45, "The Affidavit," which deals in part with legal form. Here he will try to
pass statements off as truth through his use of legal argumentation. But this will only more fully
reveal them to be fictions because of the contrast between content and form. The "Extracts" section
asks us to accept statements as impressions rather than the gospel truth. And, like the opening
framing material, the "Epilogue" stresses both the limitations of telling as well as the need to tell.
Ishmael, like Jonah, survives to tell his tale, and, like the Ancient Mariner who is compelled to
repeat his story over and over again, Ishmael has the need to tell his story and we, like the wedding
guest, to hear it. Storytelling is thus celebrated. But the "Epilogue" reminds the reader that the
narrative has been an artifice, comparing it to a "drama" and viewing the disastrous end as a
"scene". Thus words,
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which cannot be trusted to embody absolute factual truth, can be trusted to give impressions
of lived versions of truth.
Ishmael's testimony also creates as many problems as it seeks to clear up. 15 As in his cetology
research, he is actually testing two different methods of knowing: the empirical, scientific, and legal
method which relies upon demonstrable fact and which ought to be capable of proof, and the
intuitive, imaginative, and artistic method which relies upon the unknowable "ungraspable
phantom" of life ( MD, p. 14). Ishmael often "swears" that he has seen or done something or
spoken directly with a particular person, such as Steelkilt in "The TownHo's Story", all to prove the
truthfulness of an event whose internal meaning can never be adequately explained. It is as if
Ishmael deliberately sets up issues not subject to verification and then proceeds to attempt to verify
them, only to reveal the futility of this endeavor. But through this process which becomes the
dominant method of the legal chapters, the reader is forced to see an inherent flaw in legal empirical
reasoning as applied to all aspects of life. Ishmael's testimony thereby forces us to see experience as
too complex for categorization and systematic verification, and in its deepest implications, beyond
certainty. The indeterminateness of the text, however, does not represent an escape from history but
is instead an attempt to conceptualize historical representation as inexact. Rather than being a
withdrawal from temporal reality, this textual openness serves to force the reader to ever more
complex interpretations of "facts," and their interpretation can ultimately make him a shrewder
critic of his environment. Indeterminateness need not be viewed as apolitical but can on the contrary
be seen as a highly political method.
The chapters that deal explicitly with law"The Advocate," "Postcript," "The Affidavit," "Fast Fish
and Loose Fish," and "Heads or Tails"follow a basic pattern in both content and form. The content
of these chapters is critical of the issues being considered. In Chapter 24, "The Advocate," Ishmael,
while ostensibly trying to defend whaling, is actually condemning its connection to geographical
exploitation, colonial despotism, and the influx of missionaries into primitive cultures. 16 The
whaling industry exhibits the vigor of the nation but its despotic hierarchy undermines democratic
principles. The crew yields to the dominant will of the captain, the economic superior. Mid
nineteenthcenturyAmerica
65
exemplified this same contradiction. Economic and territorial expansion harnessed national
energy but directed it towards a goal of usurpation. The novel MobyDick itself reveals this
basic tension. Verbal exuberance and encyclopedic magnitude encompass a story about the
destructiveness of domination. Much like Whitman Leaves of Grass, the text of MobyDick
seeks by its very nature to conceal the contradictions it contains through the power of its own
form.
The process by which these legal chapters develop appropriates features of legal methodology that
undercut the legal concepts they seem to support. It is not only the result of unjust laws that is
criticized but also the method by which such injustice becomes a dominant ideology. Ishmael as
advocate states issues and possible objections and then offers answers as any good lawyer might do.
But he then undermines his arguments by his observations. While he claims he has presented
"naught but substantiated facts," he cannot refrain from adding his own surmises ( MD, p. 181). He
assumes a lawyerly voice because this tone is most calculated to sway audience opinion. He issues
an affidavit, a sworn written oath, to lend credence to his evidence in support of Ahab's mad quest
for the whale. In case the reader is incapable of suspending disbelief in order to follow Ahab's quest,
Ishmael sets about providing wider grounds for belief in the feasibility of finding a particular whale.
But unlike Ahab, Ishmael subverts his own attempt. By gathering impressions and citations as he
had done earlier in "Extracts," he offers an unsystematic methodology, as if to challenge Ahab's
absolutism by his own relativism. But he does so by turning Ahab's own methods against him.
Ishmael relates information "practically or reliably" known to him to substantiate the ubiquity of
MobyDick. Yet he enters as evidence of the whale's omnipresence such highly suspect material as
his distinct recognition of a "peculiar sort of huge mole under the whale's eye, which I myself had
observed there three years previous" ( MD, p. 176). By humorously undercutting evidence as a
validation for Ahab's notion of truth, Ishmael calls into question the entire legal form he is using.
His affidavit begins with a look back at Ahab peering intently over his chart, but the next chapter
presents Ishmael's surmises on the legality of Ahab's declared purpose to
66
hunt exclusively for Moby Dick and on his ability to manipulate men to execute his purpose.
The strategic placement of the legal chapters reveals a significant design embedded within the larger
text. The chapters preceding and following the legal ones disclose the relationship and discontinuity
between legal and fictional discourse, the deficiencies of legal methodology, and the fictional
alternative to the domination of formalistic legal structures. The design of these chapter groupings
offers the reader a demonstration rather than an explanation of how these two related but antithetical
forms of inquiry operate on the human mind. The relevant sections include Chapters 2327, 3133,
4146, and 8791. 17 By examining how one of these constellations works, the reader is able to
understand how the two methods operate and to respond to the emergence of the creative
imagination out of the restrictions of false reasoning.
In Chapter 23, "The Lee Shore," the shadowy Bulkington is himself a paradox. Instead of looming
largely over the text as his "bulk" in his name would seem to suggest, he is an ephemeral presence;
and as "wonderfullest things are ever the unmentionable," so too is he. Yet the spirit he exemplifies
does intangibly pervade the book. The chapter becomes a paean to unspeakable truths and to the
spirit of venturing forth. Landlessness is hailed as the realm of soul exploration and represents the
true quest in opposition to the slavish shore. It is the realm where man fulfills his best self by
enduring the uncertainty that is the condition of his being.
The following chapter, "The Advocate," however, immediately shifts tone and intent. Ishmael is now
an advocate, a lawyer. He is not addressing man's best self, his landless self, but man's usual self. He
is addressing himself to "landsmen" and the most effective way to persuade them is by talking like a
lawyer even if his argument undercuts itself. But the chapter ends with Ishmael's statement
concerning his own development. While whaling meant Ahab's destruction, for Ishmael whaling
became writing and selfcreation:
And as for me, if, by any possibility there be any as yet undiscovered prime thing in me .
. . , if at my death, my executors, or more properly my creditors, find any precious MSS.
in my desk, then here I prospectively ascribe all the honor and glory to whaling, for a
whaleship was my Yale College and my Harvard ( MD, p. 101).
67
This statement not only reveals what Melville sees as the opposition between formal education
and direct experience but also indicates that Ishmael was able to take the same experience
that confronted Ahab and use it to his own purpose, in some cases even adapting Ahab's very
methods. Yet Ishmael was to create while Ahab was only to destroy. For Ishmael, imaginative
creativity prevails over reasoned methodology.
Chapter 25, "Postscript," provides a link to the demonstration of Ishmael's creative process in
"Knights and Squires." 18 There is no introductory material to Chapter 26; Ishmael simply brings his
characters into being through his own verbal act. There is no preparatory material to suggest their
appearance. Ishmael's descriptions of the mates and harpooners (except Queequeg) give us the
materials necessary for understanding these characters' later actions. In addition, Ishmael's creative
process also demonstrates a theoretical aspect of Melville's fictional technique. Ishmael, as narrator,
like the author is dealing only with ordinary life, which is often common and disappointing. The
narrator, however, sees nobleness and dignity in ideal man. Thus he states that although he realizes
the artifice in what he is doing, he will, nevertheless, see the common man in reference to the ideal.
Ishmael asks the reader's indulgence for his imaginative latitude by referring not only to the
Democratic God but also to Cervantes. This wide margin for fictional distortion is thus suggested as
an innate property of the novel from its inception, despite the contrary contemporary criterion of
fidelity to fact. The impassioned rhetoric of this passage seems to make a more convincing appeal
for audience belief in his story than does his testimony that he had seen a specific whale with a large
mole under one eye. It is the artifice of fiction that compels belief rather than the accuracy of its
attention to factual detail. And the manipulation of factual detail itself becomes a part of the artifice.
Thus, as Ishmael drops his lawyerly voice and assumes the novelist's voice he is choosing
imaginative creativity rather than reasoned methodology, and, in so doing, he is turning the
destructive impulses exemplified in Ahab into creative ones. Like Ahab, the narrator Ishmael
controls and manipulates the characters. But while Ahab's purpose is to achieve his own obsessive
ends, Ishmael's purpose is to reveal the process of tragedy in which Ahab
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is destroyed. Like Ahab, Ishmael frequently masks his purpose, hiding behind different voices
and burying significance beneath layers of words. But while Ahab's purpose is to trick men
into blindness, Ishmael's purpose is to surprise men into insight, to make them face what
customs and institutions strive to hide. Thus the authority of imagination becomes a liberating
force which can potentially usurp the authority of domination. As Ahab's quest gets swallowed
in Ishmael's text, the possibilities of imagination are more fully realized.
It is in Chapter 54, "The TownHo's Story," that the friction between legal and fictional discourse
becomes overt. And once again, as in the novel as a whole, creative imagination triumphs over
verifiable reason which is a major aspect of legal reasoning. In his structuring of his narrative
Melville has Ishmael create a story that is a microcosm of the novel's central concerns. "The Town
Ho's Story" also involves the conflict between supposed good and evil, the question of the
justification of mutiny, and the nature of punishment. Is evil divinely punished through the agent of
the white whale? 19 But the manner in which Ishmael narrates the episode calls into question both
the nature of the story we are getting as well as our accustomed way of receiving and accepting
information. Thus by breaking the accepted rules of fiction, by disordering the narration, Ishmael's
story casts doubt on its own believability and once again emphasizes the artifice of discourse.
The transmission of the TownHo's story calls into question the believability of the facts, for the
story is indirectly received. It was first heard through the unconscious whisperings of the sleeping
Tashtego's dream and the next morning related by him to the men aboard ship. Only they seem to
have complete knowledge of the story, including a secret part. Ishmael himself says the events
occurred two years before he heard about them and at some later date, before writing of his voyage
on the Pequod, he had told the TownHo's story at least once at Lima. Our version is his retelling of
his Lima version, but in the aftermath of the whole experience of the Pequod's voyage. The facts of
the episode, therefore, are not likely to be capable of substantiation. They have been altered by the
highly mediated quality of the story, by the passage of time, and by Ishmael's own development. The
experienced writer of the story of MobyDick knows more than the storyteller at Lima, and if we
69
ask ourselves why he chooses to tell the story in a less practiced way, we might speculate that
his purpose is to reveal something about the creation and transmission of events through
storywhich is also what legal narrative does. The earlier Ishmael may have been closer to
Ahab's rigidity than the mature Ishmael who had learned the fallacy of systemic methodology
put to inappropriate use. By conflating his two selves and their respective methodologies, he is
able to reveal the inadequacy of a logically consistent vision of the world.
The method by which Ishmael narrates the story defies contemporary reader/audience expectations
and accepted rules of fiction. Three major rules are blatantly violated: those related to character
development, to plot, and to authorial selfeffacement. The central characters of Steelkilt and
Radney are neither good nor bad but mixed, and while their ambiguity leads the interpreter to try to
make a judgment, it prevents him from doing so. In fact, most critics who view Steelkilt as Christ
like and Radney as Satanic ignore essential details in order to reach their conclusions. The same
problem occurs if the positive/negative roles of Steelkilt and Radney are reversed. 20 Thus our
habitual way of receiving and interpreting information is disrupted by Ishmael's narrative style. We
can create different versions of what might have happened and why, but we are prevented from
reaching a definitive explanation that accounts for all available information.
In addition, Ishmael's storytelling often leaves something to be desired, and, like contemporary
readers of MobyDick, Ishmael's Lima audience frequently expresses confusion and impatience with
seemingly unnecessary digressions that interrupt the thrust of the adventure plot. 21 The developing
tension between Steelkilt and Radney is dropped while Ishmael discourses on the background of
Canallers, much as Ishmael interrupts his account of Ahab's obsessive quest for Moby Dick with his
"disgressions" about the whale in general. In both cases the progression of the plot is halted despite
reader expectations that it go forward at an accelerated pace. Like the lawless Canallers, so is the
fictional method lawless. Melville deliberately uses the digressions to force the reader's attention
away from expected definitive resolution and towards unresolved complexity and conflict.
70
Further interruptions of plot also occur. Ishmael leaves out central parts of the story, making
it unlikely that his audience will be able to understand its underlying meaning. He doesn't tell
anything about the white whale to prepare his listeners for the import of the story. Unlike the
Ishmael who narrates the story of MobyDick, the Ishmael of Lima does not tell what the white
whale meant to him or to his captain. He also disrupts the chronological sequence of events,
narrating things out of order and jumping ahead without explanation. He often misjudges his
audience's general knowledge and presupposes understanding instead of ignorance.
Frequently he seems to be inventing rather than reporting. He insists on infusing
predestination into the events despite his pains to explain characters' behavior. The idea of
predestination seems somewhat forced upon the narration, an outside element more closely
related to Ahab's views than to Ishmael's. "Gentlemen, a strange fatality pervades the whole
career of these events, as if verily mapped out before the world itself was charted," Ishmael
states in the style of the Lima narration. ( MD, p. 222). This mirrors Ahab's statement during
the final chase: "This whole act's immutably decreed. 'Twas rehearsed by thee and me a
billion years before this ocean rolled" ( MD, p. 459). Ishmael seems to be forcing Ahab's
obsessive conclusion onto his own created story, but the two do not mesh. Socalled "divine
intervention" is partially a result of man's intention. All things are not inevitable but can
assume an appearance of being so as long as men agree to construe fiction as fact. The degree
to which the thrust of the plot weakens is finally attested by the audience's final skepticism.
They do not seem to know when the story is over. "Are you through?" Don Sebastian must
inquire as if there were no inherent indications within the story itself that it was complete.
The extent to which Ishmael as narrator intrudes into the TownHo's story parallels his involvement
in the larger text of the novel. Unlike popularly admired midnineteenthcentury narratives that met
the criterion of an unobtrusive narrator, Ishmael the narrator often interrupts the plot, smokes and
drinks with his companions, addresses his audience directly, and becomes a central part of the
narrative itself. Rather than being evidence of a diseased or overexcited imagination, Ishmael's
intrusions add a wellrecognized humanity into the text. 22
71
An additional element of the TownHo narration is the response of the audience. There are
multiple audiences for the story, each having a particular relationship to it. Those closest to
the narrated experience, the men on the ship, seem to understand it and are influenced by it.
The audience at Lima, removed from the world of the sea but related to the world of
corruption, have a confused and often misguided understanding of the story as they receive it.
The reader, the most distant of all the audiences, receives the narrative of events as a fiction,
invention rather than evidence. Since the reader is potentially in a position to regard the whole
story as artifice, he can accept contradictory elements without resolving contradictions. He is
forced to confront the process rather than the ultimate meaning of the story. If the men
aboard the Pequod, who never question the process they are part of, could ever have had the
reader's perspective on events, then they might not have passively acquiesced in their own
destruction. Seeing may be believing, but reading may be the way to see.
Ishmael's Lima narration ends when he attempts to validate its truthfulness by swearing on a Bible,
a courtroom ritual. Yet this very act is invalidated by the narration itself. The implied irreligiosity of
the story and the corrupt setting in which it is told undercut the authority of religion. Thus swearing
upon a Bible does not reinforce the truth but subtly undermines it. Similarly, the whole notion of
swearing to the truth is subverted by the various versions of the story we are forced to confront. By
making it difficult for us to accept the story while simultaneously insisting upon its truthfulness,
Ishmael calls our attention to the nature of storytelling or the effort to reconstruct what happened. It
is not by applying preconceived expectations to events that we can best discern their meaning. It is
by a consideration of the manyfaceted dimensions of experience that its outlines may become more
visible.
Ishmael is led to take this sworn oath because of the expectations of his Lima audience: "Then I
entreat you tell me if to the best of your own convictions this your story is in substance really true?
It is so passing wonderful! Did you get it from an unquestioned source" ( MD, p. 224). In reply to
Don Sebastian's question, Ishmael witnesses to the truth of his account in a manner that fulfills
audience demand. They want fidelity to facts, direct evidence, and a definite end to the story. Even
if events seem amazing they
72
want empirical validation of the miraculous. So Ishmael supplies it: "So help me Heaven, and
on my honor, the story I have told ye, gentlemen, is in substance and its great items true. I
know it to be true" ( MD, p. 224). What he refuses in the novel, he willingly grants in the
TownHo's story. But unlike Ishmael in the Lima style, Ishmael the novelist reaches the
conclusion that the whale can never be completely known and that life's deepest meanings can
often be intuited but never definitely grasped.
Thus the TownHo's narration is a parody of a kind of truthseeking that the novel MobyDick rejects.
While the TownHo story purports to attest to the validity of a witnessed account, the novel makes
us see that the witnessed account attains validity only when it succeeds as story. Faithful
representation does not validate art; rather in a sense art validates life. Melville's letter to Evert A.
Duyckinck ( 7 November, 1851) concerning the coincidence of the actual sinking of the Ann
Alexander by a whale is a case in point. He writes that he has no doubt that "it is Moby Dick
himself, for there is no account of his capture after the sad fate of the Pequod about 14 years ago." 23
Melville is not merely pretending that the imaginary Pequod was just as real as the Ann Alexander.
He is testing the degree to which fiction can embody a kind of truth not directly perceived unless
ordered by art. Thus the voyage of the Pequod attains a reality commensurate with the actual event
of the Ann Alexander. It is not so much in the facts of the experience that we feel its truth as in its
vision.
Melville's interest in refocusing reader insight through the conflation of contradictory narrative
styles ultimately links decisionmaking and action (a province of law) to the free play of thought
and imagination (a province of art). In so doing, art, while never entering the world of human events
as directly as law, can reshape the possibilities for human action. It may be that Melville deliberately
structured his narrative to provoke repeated reevaluations of interpretive methodologies. For the
subsuming of all aspects of life under a single mode of legal/empirical reasoning might have seemed
to him to be one of the negative aspects of his own age. While his works after MobyDick, beginning
with Pierre, were to question radically the ability of art to restructure experience, MobyDick seems
to embody the belief that art not only can be a force of constructive change, but, by its very nature,
must be.
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Chapter 5
Pierre: The Novel and Legal Formalism
Pierre was in part an outgrowth of the questions Melville had pursued in MobyDick. As he wrote to
Hawthorne in his letter of November 17, 1851: "Leviathan is not the biggest fish; I have heard of
1
Krakens." The new novel was apparently going to explore even deeper waters than those that had
engulfed the Pequod. Although Ishmael had survived to tell the tale, the implications of his story
revealed a profound skepticism. Melville's next novel embodies this skepticism in a new form and
represents a transition point in his fiction. The firstperson voyager is replaced by the thirdperson
narrator who has become a disembodied commentator on the ironic hero Pierre. Characters take on
a fixed quality and function more as vehicles for ideas than as developing personalities. The infinity
of the ocean gives way to the confines of the land. And whereas Ishmael served as a kind of
touchstone amid the ambiguities of MobyDick, there seems to be no norm or center in Pierre. The
woven texture of MobyDick has given way to the selfconscious involuted text of Pierre. These
changes seem to indicate a kind of authorial withdrawal from the realm of exploration to the realm
of illustration. The world of adventure and romance has been replaced by the formalistic world of a
selfreferential text.
A corresponding legal formalism may have been among those factors contributing to Melville's
radical skepticism and his use of a highly selfconscious novelistic form to embody it. Legal
decisions during the years between 18401850 increasingly exhibited a retreat to formal
justifications rather than innovations. Judges relied upon the fixed and unchangeable nature of law
to support the idea of the law's inevitability. The purpose of these formalistic rulings was to uphold
existing institutions and to escape from a threatening reality, specifically slavery. As the gap
between morality and actuality widened, legal formalism intensified and became a kind of defense
75
against the bad conscience that often resulted among antislavery judges who made pro
slavery decisions. It is possible that as Melville continued to examine the seeming
irreconcilability of the ideal and the real, he drew upon methods similar to those characteristic
of legal formalism. But while legal formalism sought to strengthen existing institutions by
conceding an inevitability to them, Melville appropriated formalistic techniques to expose the
weaknesses and artificiality of institutions.
Thus to a greater extent than has previously been recognized, theme and form in Pierre may have
been influenced by concerns and decisions in the legal sphere. This chapter will explore some of
these relationships as they emerge within the text of the novel. First, it will examine some of Judge
Shaw's important judicial rulings about insanity which have implications for Melville's treatment of
human nature. Second, after discussing the pro slavery rulings of several prominent antislavery
judges, it will explore the implications of their conclusions and decisionmaking processes for
Melville's treatment of the duality of the real versus the ideal. Finally, as the gap between the ideal
and the real came to seem unbridgeable and fixed, Melville may have come to see the role of the
writer in a different way. Whereas in his earlier works he had viewed the imaginative authority of art
as an alternative to the restrictive authority of law, in Pierre the artist, like the lawgiver, becomes a
kind of impostor whose vision and version of the truth are also suspect.
Some of Judge Shaw's judicial decisions about insanity may have implications for Melville's
treatment of human nature within his novel, Pierre. Judge Shaw was "one of the foremost expositors
of the substantive criminal law during his time," and as such gave important legal definition to the
2 In the case of Commonwealth v. Rogers, 1844, Shaw's definition functioned as a
term "insanity."
form of reassurance by offering a control over dangerous behavior. Those designated as insane were
victims, driven by irresistible forces beyond their will. By positing such a definition, boundaries
between the normal and the abnormal could be drawn and the distinctions between them
3 An insane person who committed a homicide "acted from an irresistible
emphatically preserved.
and uncontrollable impulse: If so, then the act was not the act of a voluntary agent, but the
involuntary act of the body, without the
76
4
concurrence of a mind directing it."
Shaw's views of insanity were based upon his implicit
view of human nature. Man was reasonable and as such could be expected to exert self
control. Man was an independent individual because only then could he exert his will through
free choice. Man was selfgoverning and knew right from wrong. Thus he could foresee the
likely outcome of his actions. Shaw's definition of insanity, therefore, reinforced his view of
human nature.
Melville depiction of human nature in Pierre subverts Shaw's conceptions of the normal and
abnormal and thereby calls into question the possibility of legally defining two interconnected and
complex aspects of human nature. The career of Pierre is in a sense a refutation of Shaw's
definition. Whereas Shaw tried to legally separate the realms of sanity and insanity, Melville sees
each as related to the other. Shaw stressed the positive aspects of individualism, while Melville
demonstrates the negative features of individualism when taken to an extreme. Shaw portrayed man
as an independent agent, but Melville depicts man as not always directly in control of his own
actions. Whereas Shaw's legal definition of insanity was based upon his concept of man as
reasonable, Melville's view of man as implied through Pierre stresses the power of the unconscious
over man's behavior. Much like Ahab, Pierre asserts his extreme individualism by breaking free of
all accepted norms of behavior and declaring himself a law onto himself: ". . . henceforth I will see
5 Initially he feels himself the sole
the hidden things; and live right out in my own hidden life!."
determiner of his own actions in choosing to believe Isabel's letter and in cutting himself off from
his previous life at SaddleMeadows. Yet the narrator warns us, in the section aptly entitled
"Presentiment and Verification," that Pierre may possibly be mistaken in viewing himself as a
totally independent agent and in viewing some events as entirely verifiable. Thus the narrator
cautions, "not always in our actions, are we our own factors" (P, p. 51 ).
Furthermore, unlike Shaw's concept of human motivation as clear and verifiable, the novel offers a
very complicated view of the sources of human actions. Pierre originally ascribed his intention to
high moral purpose. His supposedly idealistic motivation impelled him to recognize Isabel as his
sister. In championing her cause he equated his actions with those of Christ, who preached of the
77
evanescence of earthly concerns. Pierre thus defied convention by choosing to support his
abused and impoverished sister. As his story progresses, however, he is aware of vague
suggestions that his motivations are not entirely idealistic. Rather they have emerged from his
subconscious sexual desires. Ultimately he does not completely know his own motivations nor
can he foresee the outcome of his actions. Thus the narrator concludes:
the most impressive, sudden, and overwhelming event, as well as the minutest, is but the
product of an infinite series of infinitely involved and untraceable foregoing
occurrences. Just so with every motion of the heart. Why this cheek kindles with a noble
enthusiasm; why that lip curls in scorn; these are things not wholly imputable to the
immediate apparent cause, which is only one link in the chain; but to a long line of
dependencies whose further part is lost in the midregions of the impalpable air (P, p. 67
).
Thus human motivations may be linked to elements outside individual consciousness that are
ultimately irretrievable.
Unlike Shaw's conclusion that, because man has reason, he can be expected to know the difference
between right and wrong, Melville seems to question both the categorical separation of good and
evil and the ability of the human mind always to distinguish between them. In the novel, Pierre
pursues a seeming good which leads only to evil consequences. In aiding Isabel he not only destroys
all around him but dimly sees the flaw in his own thought processes. His idealistic quest ultimately
leads him to interpret all experience in terms of his obsession, just as in MobyDick each interpreter
of the doubloon read into it the projection of his own mind. Pierre's radical transition from a world
of innocence to a world of experience collapses his prior system of values and conflates seeming
opposites. "The demigods trample on trash, and Virtue and Vice are trash! . . . a nothing is the
substance, it casts one shadow one way, and another the other way; and these two shadows cast from
one nothing; these, seems to me, are Virtue and Vice" (P, pp. 27374). So says Pierre, whose
absolutism has led to an extreme relativism wherein all values negate one another and negate the
concept of value itself. In Pierre's mind good and evil have become interchangeable terms hence,
no terms at all.
What has happened in the "education" of Pierre is a kind of recapitulation of the thought process
itself, but one which is not entirely completed. Pierre dramatizes what he does not fully under
78
stand, while the narrator understands what he fails to dramatize completely. There is a
"reciprocity and partnership of Folly and Sense, in contributing to the mental and moral
growth of the mind" (P, p. 167 ). Pierre is fixed in one spot of what is really a perpetually
fluctuating continuum. According to the narrator, any mature and curious mind will of
necessity stumble upon errors on its way to a truth. Without some awareness of evil, no real
good can be attained, for folly and sense are joined:
. . . only by being guilty of Folly does mortal man in many cases arrive at the perception
of Sense. . . , since though Folly be our teacher, Sense is the lesson she teaches; since if
Folly wholly depart from us, Further Sense will be her companion in the flight, and we
will be left standing midway in wisdom (P, p. 166 67).
Pierre's failure is not that he seeks to know, but that he seeks to know completely and with certainty.
This, however, is impossible because of the nature of human thought, which is dialectical, striving
to resolve only to immediately be confronted with another question. "Sudden onsets of new truth"
assail the mind so that it can never rest secure in an ultimate knowledge (P. p. 167 ). If Pierre's
mistake is to rest prematurely, the narrator's failure is that he can find no rest once he has understood
the explosive quality of thought.
Thus Melville's view of the human mind strongly contradicts Judge Shaw's definition. Shaw's insane
man exists to confirm man's sanity, while Melville's insane man, Pierre, serves to undermine a fixed
concept of what insanity and sanity mean. The unknowability of human motivation, the overlapping
character of good and evil, and the dialectical nature of thought all subvert the notion of insanity as
a legally definable category. Such a view at best makes the legal explanation only partial and at
worst, reveals law as deceptive. The legal explanation confers an artificial stability upon human
behavior and defines man as a more reasonable being than his actions seem to indicate.
It is in the area of proslavery rulings, however, that the world of the novel and the external world
most closely intersect. For it is in these decisions that the contradiction between morality and law, or
the ideal and the real, are most forcefully embodied in a formalistic structure. Robert Cover in his
book Justice Accused argues that the
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plight of prominent antislavery judges who ruled in slavery cases was contained in what he
termed the "moral/formal dilemma," or the conflict between their own moral inclinations and
the letter of the law. He claims that "whenever judges confronted the moral/formal dilemma,
they almost uniformly applied the legal rules." Legal formalism became a tool to defend
against the threat posed by slavery. As the conflict intensified especially between 1840 and
1860, judges such as Shaw, Story, and McLean changed the basis of their rulings. Whereas
earlier they could rule in support of freeing slaves, as tensions mounted they solidified their
6
views in support of slavery so that they were within the letter of the law.
Antislavery judges were often personally uncomfortable with their proslavery rulings. It was
reported of Shaw concerning his ruling in the Latimer case that "he probably felt as much sympathy
for the person in custody as others, but this was a case in which an appeal to natural rights and the
paramount law of liberty was not pertinent!" Earlier, in 1832, Shaw in his essay "Profession of the
Law," had stated that "The rule may be a good rule. . . . But some better reason must be given for it
7 By the 1840's, he offered the existence of the
than that, so it was enacted, or so it was decided."
rule as its own justification.
Joseph Story's rulings exhibit some of the same ambivalence as those of Shaw. Cover states that,
"Around the time of the Missouri Compromise, he seemed publicly committed to a strong anti
slavery stance. . . . In 1819 he publicly declared for the complete eradication of slavery from the
territories. . . . and in 1821, he rendered his opinion in LaJeune Eugenie." Story included in his
judicial decision a strong statement against the slave trade: "It stirs up the worst passions of the
human soul, darkening the spirit of revenge, sharpening the greediness of avarice, brutalizing the
selfish, envenoming the cruel, famishing the weak, and crushing to death the brokenhearted. This is
but the beginning of the evils." 8 Story's analysis could serve as a commentary on Melville "Benito
Cereno." Yet in his later career, particularly in the cases of Prigg v. Pennsylvania and Latimer, Story
in his judicial decisions withdrew from his earlier efforts to resolve the "moral/formal" dilemma.
John McLean's judicial career also exemplifies the same duality as those of Shaw and Story. Serving
as Justice of the United States
80
Supreme Court from 1829 to 1861 he, too, was influenced by the intensifying conflict over
slavery. While in 1817 as a judge on the Ohio Supreme Court he delivered an opinion in Ohio
v. Carneal that slavery "is an infringement upon the sacred rights of man," he simultaneously
perceived in his judicial decision the probable conflict between conscience and duty: "On this
subject [slavery] I confess it is difficult to deliberate without feeling exertions to suppress
every emotion would be in vain to guard against any improper influence is all that can be
expected." While morality ran against slavery, the "improper influence" on legal decisions of
personal moral beliefs was to be avoided. By the 1840's McLean was facing the
"moral/formal" conflict in a more acute form. Such cases as Jones v. Van Zandt and Prigg
revealed his retreat to formalism. "The law is our only guide. . . . If convictions. . . . are to be
substituted as a rule of action in disregard of the law, we shall soon be without law and
9
without protection."
Thus, the emergent pattern in the careers of these three judges reveals a retreat from the conflict
between moral concerns and judicial duty as they increasingly based their decisions upon the literal
demands of the law. This insulation within the letter of the law increased the gap between the moral
and legal spheres. Earlier appeals to the law of nature and the law of God gave way to insistence
upon adherence to the law of man, perhaps because tensions concerning slavery were increasing and
a consensus had not formed within the society regarding this issue. Perhaps their own personal
anxieties also influenced their decisions despite their claims to the contrary. They could not do
otherwise, the judges claimed, despite their own pangs of conscience. As their personal discomfort
increased, they tended to create elaborate justifications for the necessity of their decisions. A desire
to uphold the Union, fear of anarchy, as well as role fidelity became the foundation for their
decisions. As they raised the formal stakes they reduced the moral stakes, and because they were
uncomfortable with this outcome, they tended to ascribe blame elsewhere. The fault was perhaps in
the laws which they could only administer but not change. Or the fault resided with the people who
did not wish the laws changed. In any event, they were not to blame. They portrayed themselves as
willless and often insisted upon their helplessness. Ironically the portrait of the willless judge
provides an interesting corollary to
81
Judge Shaw's definition of insanity as based upon the willless man. For in a sense the
irrational discontinuity of morality and the law led to the very cataclysm the law sought to
avoid.
The increased conflict over slavery after the Compromise of 1850 seems to have made Melville
more skeptical about a peaceful resolution through legal redress. Whereas in WhiteJacket and
MobyDick he had criticized the failure of the common law's reliance upon precedents to ameliorate
unfairness within society, in Pierre he examines the insufficiency of appeals to natural law. It seems
that both common law which relied upon a relativist approach, and natural law which formulated an
appeal to a universal ideal, both had failed as methods of controlling human behavior. As formalistic
legal decisions widened the gap between morality and law, Melville pursued his concern with the
disjunction between the ideal and the real in terms of formalistic structures similar to those used by
the ruling judges. By concentrating this crucial dilemma within a pamphlet placed almost in the
center of the novel, Melville was able to examine the inherent contradictions within a formalistic
structure. Yet while the judges used a formalistic structure to substantiate their uneasy resolutions,
Melville used his formal structure to undermine its apparent implications.
The content of the pamphlet "Chronometricals and Horologicals" seems to offer a formal statement
of one of man's central conflicts. It attempts to address the problem of how man can "reconcile this
world with his own soul" (P, p. 208). According to the pamphlet there are two standards of conduct,
the chronometrical that is based upon "heavenly time" and the horological that is based upon
"earthly time." These two standards apparently contradict one another and ought to be separated.
For if imperfect man tries to practice the teachings of the heavenly Christ he will not only fail, but
he will destroy his earthly wellbeing. The story of Pierre would seem to verify this. Therefore, the
best that imperfect man can do is pursue a "virtuous expediency" rather than an absolute ideal (P, p.
214). Separating the absolute moral sphere from the sphere of human conduct seems to be the only
way for man to do his ethical best in an imperfect world. This scheme seems to be a restatement of
the judicial practice of separating the moral from the legal.
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There are several reasons why the content of the pamphlet should not be taken as the author's
viewpoint and, hence, the philosophical foundation of the novel. 10 First, there is the problem
of the way that the pamphlet is introduced. The narrator apologizes for inserting the lecture
into the chapter and states that he himself could "derive no conclusion which permanently
satisfies those peculiar motions in my soul, to which that Lecture seems more particularly
addressed" (P, p. 210). The pamphlet is introduced in the chapter entitled "The Journey and
the Pamphlet" and is discovered by Pierre as he makes his way from the country to the city
accompanied by Isabel and Delly. It is as if the journey with its possibility of exploration and
discovery is replaced by the pamphlet with its highly specialized language. Text is substituted
for experience. The pamphlet which Pierre accidentally discovers in the coach is referred to as
some crumpled leaves of paper . . . , a thin, tattered, driedfishlike thing; printed with
blurred ink upon mean, sleazy paper. . . . the merest rag of old printed papersome shred
of a longexploded advertisement perhaps . . . this miserable, sleazy paperrag . . . the
driedfishlike, pamphletshaped rag . . . (P, pp. 2067).
The overall insistence upon denigrating the pamphlet parallels a similar contempt for writing in
general in Pierre novel as well as in the novel Pierre. And skepticism concerning the relationship
between the ideal and the real will eventually be linked up to skepticism about writing.
Second, Pierre's state of mind when he discovers the pamphlet undermines the authority of the
pamphlet itself. He conjures up the pamphlet in a manner similar to the way he conjured up Isabel.
While riding in the coach Pierre is engulfed by silence; we are told that Isabel and Delly are asleep
and that the night journey exerts a magical power" over the traveller (P, p. 204). It is in this profound
mood of silence that Pierre begins to have doubts about the rightness of his actions. "Can then my
conduct be right?" (P, p.206). As if in answer to his doubts, he suddenly manages to get a voice out
of silence in the form of the pamphlet. The pamphlet answers his intellectual doubts just as Isabel
had answered his emotional doubts. But we are cautioned that both answers may be mistakes.
Perhaps Isabel is not really Pierre's sister and perhaps the
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pamphlet is not an adequate statement. We are told that "All profound things, and emotions
of things are preceded and attended by Silence," and that "when a man is in a really profound
mood, then all merely verbal or written profundities are unspeakably repulsive, and seem
downright childish to him" (P, p. 204, p. 207). Pierre takes up the pamphlet to break the
silence and "to force his mind away from the dark realities of things . . ." (P, p. 207). Thus the
pamphlet may be an elaborate evasion rather than a clarification of his dilemma.
Third, the pamphlet's advocacy of "virtuous expediency" is embodied in the character of the
clergyman Mr. Falsgrave, but he is depicted in an ambivalent way. According to the pamphlet, the
relatively good man does not give all he has to the poor but only displays "a certain selfconsiderate
generosity," an attitude later to be satirized in Israel Potter and The ConfidenceMan. The
"horologe" has only to abstain from "doing downright ill to any man" and to do his "convenient best
in a general way to do good to his whole race . . ." (P, p. 214). Such a man is required to care for his
family, to be tolerant, honest "and all that," leaving specific requirements surprisingly vague (P, p.
214). He can be guilty of minor offenses such as hasty words, impulsive blows, "petuience," and
"selfish enjoyment" (P, p. 214). Under no circumstances is he required to sacrifice himself
completely and unreservedly to any cause or human being.
Mr. Falsgrave seems to embody this virtuous expediency; yet he is treated with a degree of
contempt. Like the horologe described in the pamphlet, he enjoys the pleasures of life, savoring the
aroma of his morning coffee as well as the considerable charms of Mrs. Glendinning. He is
physically attractive but in a dandified way and radiates a "mild benevolence" (P, p. 97 ). He exudes
"the polishing and gentlemanizing influences of Christianity upon the mind and manners" and
fulfills his religious role with an awareness of its social implications (P, p. 98 ). He must cater to the
demands of Pierre's mother because his Church is dependent upon her financial support. He has the
external trappings of the Christian man but he has not internalized Christian ethics.
Mild benevolence, however, does not seem an effective response to Pierres' dilemma. When Pierre
poses a hypothetical problem that mirrors his confused relationship to his unacknowledged sister,
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Mr. Falsgrave evades answering because he does not wish to alienate people upon whom he is
socially and economically dependent. He offers a horological explanation which could have
been taken directly from the pamphlet. He claims he cannot speak of moral requirements as
applied to ethical problems and that such opinions are too often taken as authoritative:
"Millions of circumstances modify all moral questions; so that though conscience may
possibly dictate freely in any known special case; yet, by one universal maxim, to embrace all
moral contingencies this is not only impossible, but the attempt, to me, seems foolish" (P, p.
102 ). As has been noted, at that moment his napkin drops, revealing his cameo brooch which
represents "the allegorical union of the serpent and dove" (P, p. 102 ). Thus his role as a
spiritual leader is undercut. 11 His moral relativity makes him unable to fulfill the needs of
either the mother or the son, and he eventually disappears from the novel.
Fourth, the supposed author of the pamphlet, Plotinus Plinlimmon, raises several problems. The
pamphlet is not his direct statement but rather the work of his disciples, who are satirized as
enthusiasts of various improbable idealistic schemes. Although the narrator repeatedly indicates that
true words are seldom written down directly, Plinlimmon's words seem to reach us in quite an
adulterated form. His disciples are degenerate apostles, living in the relic of an abandoned church,
whose religious function has long since been usurped by petty lawyers and impoverished artists.
Plinlimmon himself lives alone in a secluded tower that isolates him from the community over
which he supposedly reigns. If he is a Godlike figure, he is a strange god in an unbelieving world.
Plinlimmon embodies the underlying skepticism of the novel. Pierre encounters him while passing
through "one of the higher brick colonnades connecting the ancient building with the modern . . ."
(P, p. 289). He is suggestive of some kind of transitional figure between decaying ideas of the past
and unformed ideas of the future and he conveys a notion of something not before included in an
accepted scheme of the universe (P, p. 291). While he is positive in some ways, the narrator is
nevertheless repelled by him. Plinlimmon is characterized as nonbenevolent, inscrutable, and
unresponsive to human concerns. In essence his very appearance suggests disguise. Like his
descendant the Confidence Man, he is a
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trickster who confronts others and elicits a reaction from them. He remains distant, separate,
and isolated from others, but nevertheless he can insinuate himself into others, as he does with
Charlie Millthorpe. Plinlimmon can assume "a very offhand, confidential, and simple,
sophomorean air," and can "tacitly pretend" to play a role based upon his manipulation of
others (P, p. 292). Thus Plinlimmon's ideas may not only appear in a distorted form but may
also be undermined by his own inscrutability. The secondhand version of his teachings as
stated in the pamphlet may only be a provisional attempt to fill the gap left by the collapse of a
moral tradition.
Lastly, the form of the pamphlet calls into question the validity of its content. The pamphlet begins
and ends with the word "if." We are told that the portion we are reading is only the first installment
of the proposed three hundred and thirtythree lectures. This selection is merely a beginning to a
beginning of an outline which is never concluded. Furthermore, we are given this explanation within
a novel that demonstrates the artificiality of all such explanations. And while the ostensible purpose
of the pamphlet seems to be to demonstrate the separation of morality and human conduct, it raises
another alternative: "And yet it follows not from this, that God's truth is one thing and man's truth
another; but . . . by their very contradictions are made to correspond" (P, p. 212). Perhaps "this
world's seeming incompatibility with God, absolutely results from its meridianal correspondence
with him" (P, p. 213).
Despite Pierre's downfall, the possibility of a correspondence between man's world and God's world
lies embedded within the text as an unresolved contradiction. Critics have discussed the discrepancy
in the narrator's attitude towards Pierre. While in the first half of the novel the narrator distances
himself from Pierre's misguided idealism, in the second half the narrator moves closer to a
sympathetic view of the hero's fall. In part this somewhat inconsistent view of the hero may be
related to the author's disillusionment about his own writing career. 12 It may also reflect Melville's
deeply rooted ambivalence as noted by Hawthorne when he suggested that Melville could neither
believe nor rest comfortably in his unbelief. 13 This contradictory view as expressed by Hawthorne
indicates Melville's reluctance to abandon all hope of man's potential. Even though he perceived a
split between morality
86
and human behavior, he still tried to imagine a relationship between them. It is in the first half of
the novel that the narrator explains: "We lie in nature very close to God; and though, further on,
the stream may be corrupted by the banks it flows through; yet at the fountain's rim, where
mankind stand, there the stream infallibly bespeaks the fountain" (P, p. 108 ). Later in the novel,
the narrator interprets the Encaledus dream somewhat positively. The dream reveals a connection
between man and God: "Wherefore whoso storms the sky gives best proof he came from thither!
But whatso crawls contented in the moat before that crystal fort, shows it was born within that
slime, and there forever will abide" (P, p. 347).
Yet despite Melville's desire that human beings display a connection to the divine, there seemed
to be no way in which the real and the ideal could be reconciled. In his earlier books Typee and
WhiteJacket, Melville had criticized not the ideal of law but the failure of society to implement
the law fairly. In MobyDick he had looked to the artist as a possible reconciler of the conflict
between ideal hopes and realistic expectations. By the time of Pierre, he seems to have despaired
that a connection between the real and the ideal could be made. Instead, events seemed to
confirm the split between them. Therefore, the suggestion of correspondence is only hinted at
within the novel. It was to be "elucidated" in the following lectures, but they never appear (P, p.
212).
Like the withdrawal of the antislavery judges to legal formalism, Melville places one of the
central concerns of the novel within the formal structure of the pamphlet. Like the judges'
rulings, the pamphlet becomes a kind of elegant restatement of a problem rather than the solution
to the problem, and perhaps this is the only "solution" possible (P, p. 210). But unlike the judges
who disguised themselves behind the inevitability of the law, Melville becomes highly self
conscious within the text and in so doing undermines the notion of inevitability by emphasizing
the author's manipulation of his text. Thus, while the formalism of the judges served a
conservative purpose by maintaining the status quo, Melville's formalistic methods served a more
radical function by calling into question the validity of existing forms. In so doing his
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altered attitude towards writing and the authority of the author was revealed. 14
Melville had earlier expressed his skepticism both about the nature of truth and the ability of the
writer to express it. In his essay "Hawthorne and His Mosses," he had praised both Shakespeare and
Hawthorne for their power of blackness and their perception that truth contains a profound
negativity. He also discussed the impossibility of expressing any truth directly. Because such
insights could only be glimpsed momentarily and partially, and because an audience would not
willingly accept such a dark vision, negative revelations would have to be expressed indirectly or
covertly and by snatches. 15 Similarly, in his correspondence during the period of the composition of
MobyDick and Pierre, Melville expressed his own unresolved conflict about the nature of
authorship. While he felt driven to write the gospels of his age, he also felt he might end up dying in
the gutter if he made such an attempt. What he felt most driven to write would be banned, and all
his actual works he referred to as "botches." Like his fictional author Pierre, he faced the problem of
the disparity between an ideal vision and its embodiment in a real book, feeling that possibly "a
book in a man's brain is better off than a book bound in calf. . . ." 16
Melville's ambivalent view of writing is dramatized by the specific literary career of his hero Pierre,
as well as by the whole novel Pierre. As has been discussed, Pierre's literary life parallels and
parodies aspects of Melville's artistic development. 17 Like his creator, Pierre also achieved early
fame and critical praise by drawing upon "some rich and peculiar experience in life, embodied in a
book" (P, p. 259). But in presenting Pierre as a juvenile author, Melville seems to have collapsed his
own development from Typee through MobyDick and presented the exaggerated results in the novel
Pierre.
In his earlier novels Melville had seen the writer as a kind of alternative authority to law. The writer
could be viewed as a lawgiver, whose imaginative vision offered the reader greater insight. In Typee
Marnoo was a type of the artist who embodied the ability to communicate. White Jacket emerged
from his fall into the ocean with a deeper vision of experience. Ishmael survived for the special
purpose of telling. Without evading the central elusiveness
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of the truths he had discovered, he was nevertheless able to redeem despair through
storytelling.
Pierre cannot do this nor does the novel Pierre strive to overcome the negativity of its vision
through the power of its form. Instead the form insists that conflict has not been resolved. The much
discussed lack of unity within the novel testifies to its inherent contradictions. According to the
narrator, Pierre regards books naively and sees them as containing the accumulated wisdom of the
ages. The narrator, however, views books as refuse containers. Writing itself becomes a process of
the selfemptying of the author who eliminates only his shallowest material while leaving his
deepest yearnings within himself, forever inexpressible. Books are not repositories of experience but
reflections of experience. Writers and readers who immerse themselves in books instead of
experience will ultimately face some form of delusion. A book becomes a formal structure whose
purpose is to shape in order to deceive. In this it is not unlike law.
The discontinuity of the novel reveals a central unresolved contradiction. If the novel is an attempt
to reveal the nothingness lurking behind all appearances, then, from the author's point of view, the
function of the writer is radically altered. Rather than revealing anything positive, his role can only
be to deal with appearances that are constantly shifting and changing. The writer becomes a kind of
impostor whose project seems inherently doomed to failure. Like the young author Pierre he comes
to see "the everlasting elusiveness of Truth; the universal lurking insincerity of even the greatest and
purest written thoughts. Like knavish cards, the leaves of all great books were covertly
packed . . ."(P, p. 339). The author not only fails to tell the truth but is doomed to lie. His vision as
well as his materials constrain him and make him a prisoner rather than a lawgiver. The main
function available to the writer is to demonstrate the nature of these constraints and to delineate the
outline of the reduced space he must now occupy. Or, he can manipulate appearances to demonstrate
their arbitrariness as well as their power over us. Melville's fictions after Pierre do just that.
Thus the author becomes linked to the lawgiver and in a sense is his double. Neither can get a voice
out of silence, but neither can remain silent. Because of their respective roles, each must use
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language to create a structure, although in each case the structure is arbitrary and artificial.
But here the similarity ends. The lawgiver, beginning with Moses, presumes to get a voice out
of silence which he then embodies in law. Pierre can get no answer and thus he is destroyed by
the force of his desires. He "did not flog this stubborn rock as Moses his, and force even
aridity itself to quench his painful thirst" (P, p. 346). Ironically, the laws controlling slavery
are the first civil laws that God imposes at Mount Sinai. The law in Exodus 21 begins an
attempt to limit slavery, and although the Bible assumed slavery to be a given, it also directs
the Israelites "to hallow their environment and their conduct so that God's presence will dwell
among them and provide a constant source of blessing." Human beings were considered weak
and in need of strict regulation, but a divine presence could still be imagined on earth. 18
In mid nineteenthcentury America Melville did not see any hope of connecting God's law to man's
law. In the legal decisions of the period he saw slavery intensified rather than weakened. Just as "the
age of authors" was passing, so too had the age of belief disappeared (P, p. 264). The lawgiver now
only reinforced what was rather than what should be. So, too, did the author. But Melville's
withdrawal to formalism and his consideration of the problem of that withdrawal do not imply the
abandonment of social concern. Rather his concerns reflect a different vantage point from which to
illustrate the problem. In a sense the limitations that constrained the judges were interconnected
with those that constrained the writer. And it is from that perspective that Melville was to shape the
story of his Wall Street lawyer.
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Chapter 6
"Bartleby": Representation, Reproduction, and the Law
By the time Melville completed Pierre, he had become profoundly skeptical about the ability of
language to penetrate beneath the surface of appearances and reveal something about the mystery
underlying reality. His hero's dilemma expressed this skepticism. As far as one went down into the
world, it was found to consist of "surface stratified on surface. To its axis, the world being nothing
1
but superinduced superficies." At the core of experience was a void. The center of the world had
turned out to be an empty room containing a sarcophagus, but no body (P, p. 285). Similarly, the
fate of his hero as a young American author paralleled and parodied Melville's own literary career.
Just as Pierre had sought to embody his deepest insights in a serious book, so too had Melville
attempted to write the gospel of his age, MobyDick, which had met with mixed reviews. After the
dismal reception accorded to Pierre, Melville may have become exhausted by his efforts and,
frustrated by his lack of critical and commercial success, turned away from novel writing and
towards a new fictional form. He became a magazine writer.
Melville's first published tale, "Bartleby, the Scrivener: A Story of WallStreet," appeared in
Putnam's Magazine, in November and December, 1853, and seems to be both an outgrowth of the
failure of Pierre as well as a continued exploration of conflicts already suggested in that novel. The
narrator of Pierre had begun the section "Young America in Literature" by defiantly claiming: "I
write precisely as I please" (P, p. 244). But such an approach had resulted in severe criticism of the
novel as well as of the mind that had produced it. Melville had asked himself if originality of form
could compensate for the limitations of language itself, and the
91
answer was no. The act of writing, which is an assertion of originality in Pierre, has been
reduced to copying in "Bartleby." Similarly, the language of law had also become so rigid as to
inhibit its flexibility in dealing with the most pressing conflicts of the period, particularly
slavery. "Bartleby" then takes up where the ambiguities had led.
It is surprising to note that despite the wideranging interest in "Bartleby," few critics have dealt
specifically with the interconnection of representation, reproduction, and law which the text
2 I believe that after Pierre Melville further questioned the efficacy of writing as the
suggests.
predominant mode of discourse both for interpreting experience and for organizing society, and
further, I believe that he concluded that written representation was challenged by a new mimetic
mode, the massproduced image. The consequences of automatic reproduction had affinities with
what he regarded as negative developments within the sphere of legal discourse. The simultaneous
development of various aspects of photography formed a constellation of innovations closely tied to
industrialization, which was fueled by the positivism that also predominated in the legal sphere. The
mass production of art, represented by magazine writing, the fusion of the machine and art in the
form of photography, and the mechanical encoding of law within reproduced copies of copied
documents ultimately challenged prior concepts of man, the artist, and the foundation of the society
of which they were both a part. The suppositions upon which the mechanical reproduction of
images were grounded were akin to those upon which legal formalism was based, and these
concepts further threatened the predominance of writing as a mode of understanding experience.
Ultimately this becomes the tragedy of Bartleby and of the humanity he comes to represent.
In Pierre, Melville had suggested a theory of artistic creation that is put to the test by both the
author/hero of the novel and the novel itself. The theory deals with the concept of originality. While
there is no such thing as an original in the sense intended by the world, the soul of each man
interacts with "the visible world of experience" (P, p. 259). Nature becomes a supplier of the soul's
nourishment, which the creative individual must then cultivate. Similarly, a man who aspires to be
an author, while he must assimilate the works of his literary predecessors, must also elude and differ
from
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them. Otherwise he will produce pale copies of their work. The actual creative act is conceived
of as a copying of an original that exists somewhere in the mind of the creator but is forever
beyond capture within finite words. All creative works are thus imperfect copies of an
unrealizable original.
In addition to the difficulties inherent in the creative project, the author must also face the response
of a contemporary audience that rejects grandeur and earnestness, those qualities Pierre had tried to
pour into his story. Pierre's seriousness copies Melville's own attempts to dive beneath surfaces in
the novel Pierre. But he, like his character, met with failure, and perhaps for similar reasons. Not
only had both encountered critical disapproval, but another factor may have played its part"the
ever multiplying freshets of new books, seems inevitably to point to a coming time, when the mass
of humanity reduced to one level of dotage, authors shall be scarce as alchymists are today, and the
printingpress be reckoned a small invention . . ." (P, p. 264). Paradoxically, the age of serious
authors was passing as printed matter proliferated.
Melville, like his juvenile author Pierre, turned to magazine writing. But he expressed disdain for
the project in a tone not far removed from Bartleby's famous refusal to copy. In a letter to Evert
Duyckinck of February 12, 1851, Melville rejected a request to submit some writing and a
daguerreotype of himself to Holden's Dollar Magazine:
How shall a man go about refusing a man? . . . I cannot write the thing you want . . . I
am not in the humor to write the kind of thing you need and I am not in the humor to
write for Holden's Magazine. . . . You must be content to believe that I have reasons, or
else I would not refuse so small a thing As for the Daguerreotype . . . that's what I can
not send you because I have none. And if I had, I would not send it for such a purpose,
3
even to you. . . .
Melville seems to be objecting on several different but interrelated grounds. First, he does not want
to write "the kind of thing" suitable for a mass market publication. He prefers not to cater to popular
taste. Second, he objects to the daguerreotype because it reproduces a man. By implication this is a
function formerly attributed to God or nature. Industry has usurped the spiritual and the biological.
By being reproduced, a man becomes "oblivionated" by losing his own particularity ( Log, p. 405).
"With the daguerreo
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type, everyone will be able to have their portrait taken formerly it was only the prominent;
and at the same time everything is being done to make us all look exactly the same so that
4
we shall only need one portrait."
Third, the daguerreotype is requested as a kind of
advertisement, presumably to promote the story with which it will appear. The picture
becomes a way of circulating the author, making him current by turning him into a form of
currency. Just as Pierre had refused to supply a fancy title page, Melville refuses to put the
daguerreotype on the page, which becomes an "unwindowed wall" that represents the
economic constraints surrounding the writer (P, p. 249).
The period in which Melville began to publish his magazine fiction coincided with the height of the
popularity of the daguerreotype portrait as well as the beginning of photography as a common mode
5
of representation.
Many portrait studios were located on lower Broadway, not far from the offices
of Bartleby's Wall Street lawyer. More significantly, the potential of this new mode of representation
called into question the preeminence of writing and printing. It is interesting, too, that one of the
leading advocates of the development of photography in the United States was Oliver Wendell
Holmes. Holmes was a summer neighbor of Melville's near Pittsfield and had attended the famous
picnic in the Berkshires on August 5, 1850, where it was noted by Duyckinck that "it was Melville . .
. who was the chief challenger of Holmes," specifically of Holmes's claims of European superiority
over Young America. 6 Holmes, as a physician, may have been consulted by the Melville family to
examine the overwrought writer and pronounce upon his sanity. 7 Holmes novel Elsie Venner has
been interpreted as a rationalist's answer to the psychological chaos depicted in Melville's novel
Pierre, an answer which closely parallels the views reinforced by Shaw's legal rulings on insanity. 8
Holmes, like Shaw, viewed man as rational and saw the progress of his age as confirmation of that
fact.
It is probable that Melville knew of Holmes's views about photography, which were published in a
series of articles written for the Atlantic between 18591863 and which refer to developments taking
place in the 1850's. These views seem to reinforce the legal opinions of Judge Shaw, who interpreted
the law so that human irrationality and unpredictability were minimized and
94
brought under control through legal definition. But such views had been challenged by
Melville in Pierre and their consequences would be further explored in "Bartleby."
In his essay "The Stereoscope and the Stereograph," Holmes discusses some of the triumphs of the
9 A picture substantiates illusion. Whereas previously a body gave off an
new technological art.
illusion which vanished with the body, the picture fixes illusion. Such a process implies the
undermining of religion, philosophy, and poetry, which saw illusion as a type of unreality and
instability. Holmes, however, did not consider these implications. Through the process of developing
film, a negative is used to reproduce positive copies; extremes meet and contradictions are
eradicated. The copy of nature is made to yield a perfect harmony. Holmes refers to the stereoscope
as an "instrument which makes surfaces look solid," and which gives "an appearance of reality
which cheats the senses with its seeming truth" ( Holmes, p. 140). According to Holmes, matter is
then made to appear more solid and harmonious than it may be. Whereas Melville was concerned
with revealing the illusory nature of language, Holmes offered photographic illusion as
confirmation of reality.
In Holmes's view, taking a picture also represents the conquest of matter cheaply and commonly
done. The picture becomes evidence of the material and serves to verify the real. "Form is
henceforth divorced from matter," and matter becomes useful primarily as a mold for form
( Holmes, p. 161). Holmes continued:
We have got the fruit of creation now and need not trouble ourselves with the core.
Every conceivable object of Nature and Art will soon scale off its surface for us. Men
will hunt all curious, beautiful, grand objects, as they hunt the cattle in South America,
for their skins, and leave the carcasses as of little worth ( Holmes, p. 162).
Melville's image of the empty sarcophagus at the center of the world would not have troubled
Holmes, for his emphasis was on product rather than source. The experiential world becomes
important as a place to appropriate forms. The taking of a picture thereby becomes "the greatest of
human triumphs over earthly conditions, the divorce of form and substance" ( Holmes, p. 165).
Such a concept seems to defy the very change and flux that characterize human life. In his article
"SunPainting and Sun Sculpture,"
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ture," Holmes takes this idea even further. Pictures may be better than actuality because we
can experience wonders without any risks to ourselves: "The sights which men risk their lives
and spend their money and endure seasickness to behold, the views of Nature and Art
which make exiles of entire families for the sake of a look at them," can be had by sitting in an
armchair ( Holmes, p. 177). The actual voyager (who bears a striking likeness to the young
Melville) could have even deeper experiences by looking at images of them.
Thus, according to Holmes, a photograph can take on the authority of a document as it becomes
evidence about a piece of reality. But Holmes does not consider the complex implications of his
own perspective. Some of these complexities are raised by Susan Sontag in On Photography. The
picture purports to represent life, but it can do so only by killing it. For if life is a continuous flow,
the picture can capture only a fixed moment of that flow, thereby changing our concept of the
essential quality of human existence. The photograph turns events and people into objects which can
then be possessed; for a paltry fee one can own "the best sights the earth has to show" ( Holmes, p.
216). But, as Sontag argues, through this process, our perceptions and our potential for action in the
world are also changed. By having one's picture taken, one becomes fixed, and the picture itself
serves to reinforce things as they are by privileging what is rather than what ought to be. The
photograph elicits our looking at it, but it makes no claims upon us because it asserts nothing that
can be assented to or denied. It is only one particle among an infinite number of particularities. By
vicariously participating in experience through looking, we become distanced from meaningful
action, and by accepting the material form, whether it be a picture or a document, in place of the
substance it supposedly represents, we become further removed from the world of experience and
more controlled by those shaping our images of it. 10 Thus, as Sontag's analysis shows, Holmes's
claims about photography generate striking conflicts which he does not address.
"Bartleby" can be seen as an experiment with a method of representation similar to that of the
photographic image as well as that used in law. But while Holmes had extolled the potentialities of
the new form, the text of the story suggests that Melville was skeptical
96
about its implications. The story uses aspects of photographic representation only to question
them. It also juxtaposes two mimetic modes image or pictorial copying and verbal or
thought copying to show how the new mode has influenced and usurped the old. Within the
story, the narrator is the creator of the portrait of Bartleby and our perceptions of the copyist
are based only upon those of the lawyer: "What my own astonished eyes saw of Bartleby, that
is all I know of him." 11 He offers us this portrait in a biography; yet the emerging picture is
more like a photographic image than a verbal one. The lawyer's literary style as a biographer
is somewhat linked to his professional occupation as a Master in Chancery, where he also
performs the functions of a writer. In both these modes he must deal only with surfaces, the
fruit rather than the core that Holmes spoke of, the skin or film of things that is peeled off
reality when images are taken. It is the shaping hand of the author Melville, however, that
reveals the conflicts and convergences between the two modes and the ultimate usurpation of
substance by form.
Many critics have alluded to the unsettling peculiarities of Bartleby as a character. Several have
accounted for his eccentricities by understanding them in terms of various psychological disorders.
Others have tried to explain them through existential or religious perspectives. 12 Several, however,
have noted that Bartleby is more like a marionette than an actual character. 13 He has also been
referred to as "a sort of animated xerox machine duplicating the documents that reinforce and
perpetuate the status quo." 14 Recently a contrast has been drawn between Bartleby's position within
the Wall Street office and landscape painting. 15 But the story itself seems to suggest the rigidity of
a camera snapshot rather than the variations of a handpainted portrait.
Bartleby's first appearance requires us to look at him as if he were a photograph. He appears without
context, possessing neither a past nor a future, but only a perpetual present. He is seen as if framed
by the doorway of the lawyer's office: "a motionless young man one morning stood upon my office
threshold, the door being open, for it was summer. I can see that figure now pallidly neat, pitiably
respectable, incurably forlorn! It was Bartleby" ("B," pp. 45 46 ). It is as if anonymity engenders
particularity. He becomes by not being and gains identity through featurelessness. As one man,
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he stands for all. This picture of Bartleby is both contentless and full of content, free of
interpretation and yet demanding to be interpreted. Bartleby exists as a kind of empty form
which will generate the presence of material for the lawyer's story.
Bartleby's main characteristic seems to be a lack of characteristics. He is bodiless: "no materials
exist for a full and satisfactory biography of this man" ("B," p. 39). He is the outward form of a man
without the inner core. Like a photographic portrait, he seems to be a mechanical reproduction. He
is variously described as "pale and mechanical" with nothing "ordinarily human" about him ("B,"
pp. 46, 47). The narrator repeatedly notes that "he never went to dinner, . . . never eats a dinner
properly speaking ("B," p. 50). Although seemingly famished, he gorges himself on documents as if
the proper food for an automaton were the codes that created him. His death by starvation is the
culmination of the process of separating the substance of a man from his form, for in fact a man
cannot live without dining ("B," p. 73). Like a photograph, Bartleby is fixed forever, a "perpetual
sentry," passive and mulish ("B,"' pp. 50, 53). He is an apparition, still and unalterable; "he was
always there . . ." ("B," p. 53). Indeed, the lack of material about the man is "an irreparable loss to
literature" for it represents the same dilemma Melville was facing as a writer: how to deal with the
illusory nature of outward form.
The physical setting of the lawyer's chambers is also suggestive of a kind of obscure darkroom,
closed off from the outside flux of life:
My chambers were up stairs, at No. Wall Street. At one end, they looked upon the
white wall of the interior of a spacious skylight shaft, penetrating the building from top
to bottom. This view might have been considered rather tame than otherwise, deficient
in what landscape painters call 'life' ("B," pp. 4041).
The other end of the chamber offers an unobstructed view of a wall further blocking off the outside
world. In addition, the inner arrangement of the offices has a photographic quality. The premises are
divided by lenslike ground glass folding doors ("B," p. 46). Bartleby's desk is placed close to the
lawyer's, near a window which gives off a bit of light: "Within three feet of the panes was a wall,
and the light came down from far above, between
98
two lofty buildings, as from a very small opening in a dome" ("B," p. 46). A high green folding
screen serves to isolate the two men from one another or to join them. The physical
arrangement suggests the lawyer's attempt to capture some inner aspect of himself, to embody
some intangible quality of his being in a tangible form, to join form and substance in a solid
whole. But he finds this cannot be done.
The lawyer and Bartleby share a kind of positive/negative relationship to one another. Bartleby's
presence is called into being by the lawyer's advertisement. He appears in response to the lawyer's
need for him. The copyist exists as a negative version of the lawyer's characteristics. Their
opposition confirms their relatedness and at the same time destroys it. The lawyer is complacent and
comfortable. Bartleby emerges as a challenge to everything the lawyer unquestioningly accepts. The
lawyer's constant motion and activity are arrested by Bartleby's inflexibility and stasis. The lawyer's
earnestness is thwarted by the copyist's passivity. Because the lawyer expects a certain kind of
response from Bartleby, he is continually disappointed.
The lawyer possesses the kind of mind which strives to account for everything, even the
unaccountable. Thus he tries to relate to Bartleby within the systems of belief he has come to rely
upon automatically. Initially he appeals to the legal system by admonishing Bartleby to examine
copy because "[it] is common usage. Every copyist is bound to help examine his copy. Is it not so?"
("B," p. 48). He also relies upon the claim of economic utility: "he is useful to me. I can get along
with him" ("B," p. 50). He thinks perhaps he can make Bartleby at least as adaptable as his other
copyists and thus get a minimal amount of work out of him. He then appeals to religious sentiment.
He thinks perhaps he can "cheaply purchase a delicious selfapproval. To befriend Bartleby; to
humor him in his strange willfulness, will cost me little or nothing, while I lay up in my soul what
will eventually prove a sweet morsel for my conscience" ("B," pp. 5051). He also hopes to find a
philosophical explanation for Bartleby by consulting "Edwards on the Will" and "Priestly on
Necessity" ("B," p. 64). Yet all of these approaches fail. Bartleby exists to provoke and elude the
mind of the lawyer, which in turn seeks to resolve and capture the enigma that Bartleby represents.
99
Because of their opposition, however, the lawyer and Bartleby are connected, just as the need
to capture and the need to flee are predicated upon one another. The lawyer feels attracted to
the opposition that Bartleby presents and almost immediately senses a kinship with him:
I felt strangely goaded on to encounter him in new opposition to elicit some angry
spark from him answerable to my own. . . . I closed the doors, and again advanced
towards Bartleby. I felt additional incentives tempting me to my fate. I burned to be
rebelled against again ("B," pp. 5152).
Bartleby's continual refusals are not only a disruption of the lawyer's business operations but also a
threat to his identity:
Indeed, it was his wonderful mildness chiefly, which not only disarmed me, but
unmanned me, as it were. For I consider that one, for the time, is a sort of unmanned
when he tranquilly permits his hired clerk to dictate to him, and order him away from
his own premises ("B," p. 54).
Bartleby's challenge to the lawyer is like the whale's challenge to Ahab; both embody a perceived
threat to physical existence. Not only does the lawyer inadvertently pick up the vocabulary of his
copyist, but he fears he will lose both his language and his physical self to him. The lawyer begins to
fear that in the end Bartleby will "perhaps outlive me, and claim possession of my office by right of
his perpetual occupancy" ("B," p. 66). Bartleby may in fact become him by usurping and negating
his modes of selfrealization his language and his occupation. But the lawyer's attempt to
appropriate Bartleby brings about the opposite result. Form and substance become disconnected,
consigning the lawyer to an inner emptiness and Bartleby to a bodily death. Unlike Holmes who
claimed that photographic representation would overcome the duality of form and substance,
Melville shows that the lawyer's mechanical reproduction of Bartleby through his attempt at a
biographical portrait has irreparably torn form and substance apart. The complex tension between
the two cannot be easily reconciled through any mimetic mode, and to claim that this can be done
only intensifies the problem.
The failure to yoke unlike elements into a solid whole is also manifest in the language of the story,
specifically its legal terminology. A close look at some of the legal terms reveals how disparate
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elements become fused in a single term. But rather than communicating a fused whole,
language reveals the lack of harmony between reality and its representation, and this
disjunction is transferred into the realm of behavior as well. The limitation of the lawyer's
language is related to his incapacity for action. He cannot act effectively because his role has
altered from its initial meaning. He holds a position which can no longer be fulfilled. The
lawyer begins his story by discussing his "avocations" of the last thirty years ("B," p. 39). The
word avocation which is also related to advocate or lawyer, links two contradictory ideas. It
means "the calling away or withdrawal (of a person) from an employment," "a diversion of
thoughts," a "bywork." But a new meaning was improperly foisted upon the word. As the
business which called away became one of equal or greater importance, the word came to
mean ordinary employment, usual occupation, or calling. 16 The lawyer's original business
was "that of a conveyance and title hunter" ("B." p, 45). The early meaning of conveyance had
to do with suppression rather than transmission. It meant "to steal, purloin, to take away
secretly," but it came to mean the transfer of property from one person to another and the
document by which this is brought about. 17 Oppositional meanings also cluster around the
term reference, which was originally a method for resolving disputes but later became a way
of indicating the validity of information. Similarly, a forger could be a creator or a maker of
fraudulent imitations. 18
Unlike a photographic representation, which purports to be an authoritative documentation of
reality and conveys a deceptive control over experience, language reveals the inharmonious nature
of experience and the difficulty of fusing diversity into a solid whole. Yet the lawyer's use of
language both in his legal practice and in his biographical writing reveals the inadequacy of
language as a form of representation and the extent to which photographic imagemaking has
impinged upon the process of verbal thoughtmaking. The lawyer has attempted to capture his
subject, and like the photographer who kills his subject by turning it into an object, the lawyer's
portrait kills Bartleby. His attempt to depersonalize the subjectivity that Bartleby represents crushes
a part of himself. The photograph can only deal with a particle of experience, but as Bartleby
explains to the lawyer, "I am not particular" ("B," p. 69).
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No human being prefers to exist as a pure object, and any attempt to force him to do so is
deforming, as in the case of Turkey and Nippers, or totally destructive, as in the case of
Bartleby.
The separation of "reality" from its representation, of meaning from form, and of thing from word
creates a world composed of surface illusions. This illusory surface not only alters one's concepts
but also affects one's behavior. The lawyer cannot respond to Bartleby's needs because he cannot
understand them. The lawyer's world is a world in transition, a world where traditional systems still
retain their outward form but have lost their inner substance. Thus as a Master in Chancery
functioning on Wall Street, he is already an anomaly. The lawyer exists between two worlds, one of
possible meanings and the other of empty forms, and while he acts as if he might discover meaning,
he finds it is becoming increasingly difficult to do so.
Thus the lawyer's various serious proposals to help Bartleby emerge as jokes rather than as options.
His offers of money seem ludicrous since Bartleby has no material wants and the economic system
which permits the lawyer to offer it is the very one that requires the scrivener to refuse. His
suggestions of alternative jobs seem equally ridiculous. A clerkship in a drygoods store seems as
dry as the documents in the lawyer's office, and if the experiences of Melville's own father and
brother were any indication, the drygoods business would not likely prove financially rewarding.
Melville may also have had a further irony in mind, for many drygoods establishments had come
into existence through the destruction or conversion of churches. Clothing or outer coverings for the
human body were stored in places formerly reserved for the spirit, and there were literally empty
tombs at the center of the world:
It is startling to enumerate the number of churches which have been pulled down and
displaced to make room for the great business which spreads, with such astounding
rapidity over the whole lower part of the city, prostrating and utterly obliterating
everything that is old and venerable,and leaving not a single landmark, in token of the
former position of the dwellingplaces of our ancestors. . . . Within the past twenty years
all these stately houses of worship and their parsonages have been torn down, the
contents of their graveyards and family vaults ruthlessly scattered, and the sacred
ground covered with long blocks of brick and freestone warehouses for the storage of
drygoods. 19
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Furthermore, in a sense Bartleby is already a bartender, waiting to take orders from the
lawyer and subservient to the dictates of the legal system. Similarly, billcollecting and polite
conversation seem farremoved from Bartleby's capabilities. Since Bartleby is alienated from
both the economic system and language itself, neither occupation seems a realistic possibility
for him.
But it is the lawyer's final offer that seems most ironic: "'Bartleby,' said I, in the kindest tone I could
assume under such exciting circumstances, 'will you go home with me now not to my office, but
my dwelling'" ("B," p. 69). Although frequently taken as the ultimate sign of the lawyer's
charitableness, this offer may perhaps be more a sign of the lawyer's alienation. For if Bartleby is in
some sense an aspect of the lawyer, then we might infer that the lawyer has no home to offer. The
law office, with its interconnection to the political and economic realms, has become his home, the
place where his identity is realized. The lawyer never refers to any family relationships nor is his
home ever depicted. The other copyists and lawyers seem to be his only associates. Bartleby is the
lawyer's homelessness and that part of him that rebels against such absolute alienation and the
system that demands it.
The lawyer occupies a particular position within the legal system. He is concerned with the legal
documentation of property, doing "a snug business among rich men's bonds, and mortgages, and
titledeeds" ("B," p. 40). By his own admission, he is not a diver:
I am a man who, from youth upwards, has been filled with a profound conviction that
the easiest way of life is the best. . . . I am one of those unambitious lawyers who never
address a jury, or in any way draw down public applause. . . .All who know me, consider
me an eminently safe man ("B," p. 40).
His function as a lawyer is connected to the economic world, for he was "not unemployed" by the
late John Jacob Astor whose opinion he valued and who appreciated his "prudence" and "method"
("B," p. 40).
But Melville calls the lawyer's duties into question by his reference to Cicero. According to John
Carlos Rowe in his chapter on "Bartleby," ownership is an illusion which depends upon the
possibility of a meaning which the lawyer attempts to fix. This defies Cicero's questioning of the
nature of ownership, as quoted by
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Rowe: "Now no man can say that he has anything his own by right of nature; but either by an
ancient immemorial seizure . . . ; or, secondly, by conquest, as those who have got things by the
right of the sword; or else by some law, compact, agreement, or lot." As Cicero states,
property thus becomes "the result of an original transgression of man's nature, an arbitrary
determination of right that is rationalized by social law". 20 The lawyer, then, is engaged in a
process of rationalizing an arbitrary determination through the encoding of the law.
The Ciceronian concept of law had earlier served the founders as a basis for the new republican
society. The lawyer's position as Master in Chancery had originally been part of a royal system of
government and from its inception would have been unsuitable in a republic. In its earlier form,
Chancery had allowed some flexibility in deciding hard cases and had been closely related to ethics
and morality. It had offered a way to involve conscience in the workings of abstract legalism. 21
By the time the lawyer has been granted this position, not only was it anachronistic in a republic, but
it had been reduced to a political appointment valued primarily for its lucrativeness. Although the
lawyer describes himself as unassertive, an aggressive tone creeps into his voice as he angrily
protests against the extinction of "the good old office" by the new constitution of the state of New
York ("B," p. 40). He refers to it as "premature" when it was probably long overdue, and although he
claims that his outburst is "by the way," it is central to his concept of the law and to the story itself.
The lawyer had thought to retain this position for life, to continue to reproduce documentation of
ownership in his snug retreat. He had not imagined the complexities of law that would emerge
through his relationship to Bartleby. He had been content and even eager to operate as a cog in the
legal machinery of the Wall Street world by contributing to its rigidity. Law and morality were
separate to him and the origin of legal authority was unquestioned. By repetitiously writing the
documents that encoded the laws of ownership or origin, the lawyer becomes a key element in
maintaining the structure of the entire legal framework.
The lawyer's job is to copy difficult decisions of ownership into statements of law. Presumably these
decisions are based upon some ideal concept of truth which is reinforced by each additional
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written decision. The legal document, therefore, is supposed to encode some aspect of truth
which is originally unwritten and ideal. The lawyer automatically carries out this function
much as his copyists carry out theirs. But Melville undermines the whole notion of an abstract
truth that can be contained in the finite materials of language. He had already considered this
dilemma in MobyDick, and he pursues it in "Bartleby" as well. But the implication of his
earlier view that writing could reveal and hence challenge the limitations of language now
seems to have darkened. Whereas the various readings of the doubloon in MobyDick had
shown the subjectivity invoked by signs, in "Bartleby" such interpretive play has changed.
In "Bartleby" signs do not testify to the subjectivity of meaning but are evidence of total objectivity.
Much like a photograph, the written legal document is the surface expression of a reality that is
decontextualized and refuses to consider any adaptation to special circumstances of an individual
case. It tries to put the particular and the relevant into a generalized context. The lawyer writes the
"original" document which is in turn based upon other documents. The scriveners then copy
duplicates to make all involved have an identical understanding of the authoritative text. Individuals
do not interpret to find out what something means; they mechanically reproduce the thing in order
to substantiate its existence. That is why all the copies must be exactly alike and great importance is
placed upon the checking of copy. Since the document and its copies supposedly embody "truth,"
any mistake or discrepancy among the copies would challenge the truthfulness underlying the whole
system. Exactitude substantiates truth, and the copy comes to stand for the original. The photograph
in Holmes's description had offered more reality than reality itself, and the copy reinforces the
validity of the abstraction it represents. The purpose of language in this system becomes similar to
that of the photograph: to reproduce the surface of reality with as much exactness as possible so that
the outward representation will be taken as the thing itself. As substance disappears, form becomes
all that remains. Just as in the photograph the image would remain after the subject had vanished, so
in the writing of the law, the code would remain after its meaning had grown obscure or would be
there in place of meaning.
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Not only could law provide the outward framework for the absent abstract truth, but it could
also produce an image of man. By defining rules of behavior and by reducing differences to
sameness, the law determines standards or boundaries of conduct. As Rowe has pointed out:
A Master in Chancery derives his title from signifiers of guardianship; chancery,
chancell, or chancl, cancellarious, cancellus, cancell. A cancelli is a lattice, railing, or
grating behind which the cancellarious worked, so named as the keeper of the barrier;
the 'secretary' and 'secretary' itself retains the traces of such gatekeeping and the
determination of proper limits or bounds. 22
The word chancery also relates to "the head of an antagonist, in a secure position under one's arm,
so that one can pommel it without fear of retaliation in allusion to the helplessness of a person
involved in a chancery court." 23 This definition relates to the method of the early daguerreotypists,
in which the head of the subject was held rigidly in place so that his image could be taken.
As the daguerreotype, which Melville anticipated could "oblivionate" a man by reducing him to a
copy of all other men, laws could also regulate men's actions according to a standard of conformity.
In a sense that is what happens within the story. There is a hierarchy of imitation within the law
office. The copyists become interchangeable parts of one man, each functioning during alternating
parts of the day, and as one critic has suggested, each possibly representing progressive stages of a
man's life. 24 Similarly the Wall Street lawyers follow a common code of behavior. When the
narrator comes to a point of acceptance of Bartleby, he is dissuaded from his attitude by the
condemnation of his colleagues. So the narrator must ultimately conform or face being "exposed"
("B," p. 68). As the copyists imitate the lawyer, so the lawyer reproduces the codes that regulate the
entire system.
Thus the written legal documents become the form by which the abstract ideal is embodied. But the
codes are empty because the abstract ideal has been replaced by the legal copy itself. The abstract
ideal becomes the property of the writer of the codes who controls its reproduction and
transmission. As the photograph takes on the reproductive capacity of nature, so too does the
written law, for it also reproduces a man by defining what he is and
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what he can do. But rather than finding a basis in ethics or morality, the abstract truth is now
tied to the workings of Wall Street and the goal of the system is the perpetuation of the status
quo. The lawyer repeatedly writes the codes that will maintain his position as master.
Bartleby's entrance into the lawyer's office intensifies the split between substance and form, and
finally interrupts the cycle of production and circulation of the legal codes. His appearance and its
effect had already been foreshadowed in the characteristics of the other legal copyists. Their
neurotic habits are a response to their tedious work and represent a displaced form of rebellion. 25
They, like Bartleby, threaten the lawyer with the possibility that they could become him. Nippers is
described as "ambitious," showing at times "a certain impatience of the duties of a mere copyist, an
unwarrantable usurpation of strictly professional affairs, such as the original drawing up of legal
documents" ("B," p. 43). That is the main job of the lawyer himself and the key to the continuation
of the system. Nippers, like the lawyer, also does a little business on the side and "was not unknown
on the steps of the Tombs," where both the lawyer and Bartleby will later be found. Turkey
occasionally enjoys sealing documents with gingernuts, a practice which annoys the lawyer. Ginger
nut, the twelveyearold law student, already has formulated his entire concept of the law, which is
exemplified by his drawer filled with nut shells empty containers with no inner substance. But
although the copyists gradually adopt Bartleby's negative refrain, they do not consciously identify
their servile situation with the system they serve.
Bartleby's "advent" raises the possibility of rebellion to a higher level. Initially the lawyer is
extremely well pleased with Bartleby's abilities. At first Bartleby's apparent lack of eccentricity
makes him adept at mechanical reproduction, and the lawyer is duly impressed. His only wish is that
his worker be "cheerfully industrious," that he like his mechanical servitude because that will insure
his continued productivity ("B," p. 46). But cheerfulness is what Bartleby lacks, and soon his first
refusal occurs. Initially he refuses to write the legal documents. Then he refuses to check copy or
verify that each one is exactly alike. In refusing to write and check copy, he is refusing to participate
in a system which uses empty
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forms as verification of an absent truth that in fact might not exist. By not caring if each copy
reads exactly alike, or if there is a copy at all, he refuses to maintain the illusion that an
abstract truth is enshrined within the legal code. Ultimately he refuses to go to the post office
to deliver or pick up messages. He will not be a link in the transmission of empty forms or
dead letters. The only note that seems to arrive at its destination is the one that eventually
informs the lawyer of Bartleby's fate. Thus writing as effective communication has been
reduced to an instrument of law enforcement.
Ironically, Bartleby's refusal to comply with the lawyer's attempt to objectify him, momentarily has
the effect of turning the lawyer into an object. Failing in his attempt to assume Bartleby out of
existence through legal language, the lawyer is thunderstruck to find Bartleby still there. The lawyer
evokes an image of himself possibly suggestive of a freezeframe photograph similar to Bartleby's
first appearance in his doorway:
For an instant I stood like the man who, pipe in mouth, was killed one cloudless
afternoon long ago in Virginia, by summer lighting; at his own warm open window he
was killed, and remained leaning out there upon the dreamy afternoon, till some one
touched him, when he fell ("B," p. 62).
Framed by a window, he sees himself as though caught alive in the midst of death. It is as if a
photographer "shot" him, thereby capturing his essence in the process of killing it. In a similar way,
this is what the lawyer perceives will happen to him if Bartleby dominates over him. To protect his
identity he must eliminate Bartleby.
Bartleby's refusal not only threatens the foundations of personal identity but also undermines the
basis of society as represented by the Wall Street world. The lawyer mistakenly thinks that "all
Broadway shared in my excitement and were debating the same question with me" ("B," p. 62). But
he finds that his concern with Bartleby is only a projection of his obsession. Actually it seems that
everyone else except the lawyer already knows what to do with Bartleby. It does not arise as a
complicated question for others because they operate completely within the mechanical rules of
Wall Street. It follows then that Bartleby must simply be done away with. In response to the lawyer's
indecision about Bartleby, Turkey responds with "'I think I'll just step behind his screen, and black
his
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eyes for him'" ("B," p. 51)! Nippers answers with "'Prefer not, eh?. . . I'd prefer him, if I were
you, sir, . . . I'd prefer him, I'd give him preferences, the stubborn mule'"" ("B," p. 58)!
Bartleby also prompts uneasy reactions from the lawyers who do business with the narrator. The
lawyer who takes over his offices has no difficulty instituting criminal proceedings against Bartleby.
And by the time the narrator returns for one last attempt to convince Bartleby to leave willingly, the
copyist has moved beyond the confines of the office and is "haunting the building generally, sitting
upon the banisters of the stairs by day, and sleeping in the entry by night. Everybody is concerned;
clients are leaving the offices; some fears are entertained of a mob" ("B," p. 68). Bartleby's initial
refusal to write has become a direct challenge to the society supported by those writings, and the
machinery of that society is mobilized to destroy him.
As Michael Clark has suggested in his article, "Witches and Wall Street: Possession Is NineTenths
of the Law," the narrator's problem in dealing with Bartleby is in the way he views him. The
narrator sees Bartleby as a sign whose true significance is hidden. He had tried throughout the story
to apply various established categories by which to explain him, but none has worked. "Everyone
else treats Bartleby as a 'mere sign' which exists simply within the causal chain they happen to apply
to it," as Clark observes. As much as the narrator tries, he can only see a surface, and this disturbs
him. Others on Wall Street do not expect Bartleby or language to mean anything beyond their
surface appearance. 26 But the narrator is uneasy about this method of knowledge. His work as a
lawyer and Master in Chancery strengthened his belief in this method, but at the same time, his
immersion in this system has called forth Bartleby to question its implications. Although the lawyer
begins his biography by claiming to rely only upon the evidence of his own eyes, he, perhaps like
Melville, wanted language and experience to be linked to some deeper level of meaning. The
lawyer's attempt to become a writer testifies to his desire to transcend the disjunction between
surface and substance. But the written document he has created becomes evidence that he has been
unable to do this. The Wall Street world has become the only world in which the nineteenthcentury
American author lives and works.
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Thus the lawyer as writer demonstrates the interconnection between these two realms and the
limitation each faces. The lawyer as a writer of legal documents had absorbed the method of
separating substance from form in order to establish form as substance. The advent of
Bartleby temporarily threatens his habits of thought and writing by contradicting his
suppositions and beliefs. Initially the lawyer seeks to obliterate this threat by absorbing
Bartleby into some part of his belief system. By so doing he had hoped to make Bartleby mean
something that he could effectively control. When this fails, the harsh workings of Wall Street
deal with Bartleby by automatically consigning him to prison for failing to assume his
assigned place within the machine. Having witnessed both the appearance and the
disappearance of Bartleby, the lawyer is left with the uneasy feeling that the experience ought
to have meant something beyond itself, and yet he cannot grasp just exactly what that meaning
might be. Therefore, he seeks to gain further understanding through the literary process of
writing a biography. By trying to reconstruct creatively the events of Bartleby's life as they
relate to his own, he hopes to be able to arrive at a satisfactory interpretation of the
significance of this experience. But the literary process, like the legal one, fails. Bartleby
eludes both.
The form of the lawyer's biographical writing depends upon features of his legal writing which
weaken him as a literary artist. His repeated use of double negatives as well as his frequent recourse
to legal jargon protect him from penetrating beneath the surface of language and instead convert
language into a defense mechanism. Rather than developing the interpretive possibilities of
language as Ishmael had done, the lawyer instead uses it as a protective device. Just as he seems
about to hit upon an insight into Bartleby's meaning, he evades it, either by abruptly changing the
subject, or by suggesting an expedient rationalization, or by actually fleeing. It is the lawyer's
avoidance, his removal of himself at crucial moments, that leads to Bartleby's demise. In a sense the
story chronicles how the lawyer ultimately eradicates a substantial part of himself in sacrifice to his
outward form as a Wall Street lawyer.
Interestingly, the story the lawyer gives us through his writing in many ways resembles a snapshot
which in turn seems to be an outgrowth of the legal writing he has spent his life engaged in. The
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larger story Melville has created shows a legal system bereft of inner substance but that takes
its form through writing. Language is put to the task of creating surface illusion to stand for
meaning. In so doing, language functions in a manner similar to the photograph, a form that
could more perfectly and cheaply reproduce the world. In the lawyer's struggle to capture
Bartleby, we see the last vestiges of written discourse asserted against a mechanical and static
one. The image prevails over the word and the word is used to enforce the image. In such a
world people move as automatons among a complex play of surfaces, and it is this kind of
world that Melville becomes increasingly concerned with in his stories of this period and in his
later works. In "Benito Cereno" we begin to get a picture of what happens when society
becomes merely a play of surfaces regulated by legal documents that adhere to the letter but
not the spirit of the law.
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Chapter 7
"Benito Cereno" and the Failure of Law
"Do the rights of nature cease to be such, when a negro is to enjoy them? Or does
patriotism in the heart of an African, rankle into treason?"
1
Letter on Slavery, by a Negro, 1789
"Where liberty draws not the blood out of slavery, there slavery draws the blood out of
liberty."
2
Walt Whitman, quoted by Herbert Aptheker
The decade of the 1850's, in which Melville's short stories were composed and published, was
turbulent. It generated both expressions of Southern panic over the possibility of slave revolts and
numerous abolitionist tracts calling for the immediate overthrow of slavery. It was the period during
which both the novel Uncle Tom's Cabin ( 1852) and the Dred Scott decision ( 1857) were written.
The preCivil War decade also encompassed the KansasNebraska debates, an economic depression
in 18541856, and extraordinary slave unrest. Controversy over the Fugitive Slave Law of 1850
continued to increase, beginning with the return of Thomas Sims from Massachusetts to slavery in
3
1851 and intensifying with the case of Anthony Burns in 1854. This latter event prompted Thoreau
to write: "I wish my countrymen to consider, that whatever the human law may be, neither an
individual nor a nation can ever commit the least act of injustice against the obscurest individual
4
without having to pay the penalty for it."
A segment of Melville's story "Benito Cereno" ran concurrently in the fall of 1855 with a review of
Frederick Douglass' Autobiograplay in Putnam's, which was edited by Frederick Law Olmsted, an
antislavery advocate. Yet contemporary reviewers of The Piazza Tales ( 1856) in which "Benito
Cereno" was included, overlooked the connections between Melville's story of a slave rebellion at
sea and controversial events of the time. Instead they attributed any
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disturbing qualities generated by the story to its Poelike effects and its "thrilling weirdlike
narrative, which read at midnight, gives an uncomfortable feeling to a powerful
5
imagination. . . ."
Failing to see any relationship between the tensions contained within the
story and the tensions within a republic that legally protected slavery, these early reviewers
initiated a line of criticism that insulated the text of ' "Benito Cereno" from the context out of
which it emerged.
Rather than being dissociated from its social and political context, Melville's story is intricately
connected to it, deriving both its content and its narrative form, as well as its unresolved
contradictions, from its cultural background. Instead of avoiding the issue of slavery, the story
confronts and explores slavery's moral and political dimensions in an attempt to disclose the "how"
rather than the "why" of its persistence. Melville's concern with the problem of slavery represents a
concern with fundamental flaws within a democratic society. The existence of slavery within
American democracy highlighted several of the most glaring discrepancies between the principles
and the facts of the founding of the nation. Did the laws of the nation tend towards the realization of
a proposed but as yet unrealized ideal, or did these laws actually militate against the hypothetical
ideal by upholding the status quo? Did slavery, by its stark negation of freedom, thereby reveal
inadequacies in the ideal of freedom itself? How could a society which of necessity must be
grounded in law, permit the violation of law for a greater good? Could the concept of freedom
embody the right to rebellion and if not, what was the basis for the United States itself. Ultimately,
in times of crisis, when the most passionate instincts and interests of human beings collided, why
did the law fail to move men towards justice rather than violence? What was it about the nature of
the legal system that separated the spirit from the letter of the law and made of justice and law two
different things?
From the period of its publication, "Benito Cereno" has always been a problematical text to its
critical readers. Interpretations of its content as well as its form have been numerous, varied, and
often diametrically opposed to one another. Melville is one reader's racist while being another's
abolitionist, and the text of the story has been cited as evidence in support of both of these
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contentions. Similarly, the narrative form has been regarded as both one of the finest
examples of Melville's prose art and as static, overly formalistic, and weighted down by the
6
appendage of dreary legal documents. Often criticism of form has been linked to the political
ideology of the interpreting reader. A "good" reading in our own decade seems to be one in
which Melville vindicates the right of slaves to rebel against unjust authority, a point
manifested within a highly artistic narrative form that itself disrupts order.
I will argue that while slavery is central to the text of "Benito Cereno" Melville was primarily
interested in this issue as a problem of law, because the law had created a situation in which it was
inadequate to deal with the actuality it helped bring into being. Most fundamentally, slavery, not
abstract morality, was a legally constituted condition, but one that was not resolved through legally
constituted means. Why did law fail to solve a crisis which it had engendered? Despite Melville's
ambiguous treatment of freedom and slavery throughout his works, he speaks emphatically in his
Supplement to Battle Pieces ( 1865): "Those of us who always abhorred slavery as an atheistical
iniquity, gladly we join in the exulting chorus of humanity over its downfall." Yet in the following
sentence he states the inherent incongruity of law: "But we should remember that emancipation was
accomplished not by deliberate legislation; only through agonized violence could so mighty a result
7
be effected."
In "Benito Cereno" Melville explores how the law fails to find legal solutions to critical crises and
instead subverts justice in the name of order. The Yankee captain Amasa Delano becomes a vehicle
for examining how legal reasoning operates as a mode of perception and how this mode is political
and thus morally deficient in nature. Manipulation of narrative order also reveals deficiencies within
the system of law because chronological disruption both permits new forces to enter the text and
simultaneously suppresses them. Furthermore, the relationship of Melville's fiction to his source,
the historical account in Amasa Delano Narrative of Voyages and Travels ( 1817), indicates that all
original sources, historical or legal, can only be altered sources of truth, and by altering sources in
particular ways, man shapes his experience through law. Finally, by linking fiction and law, Melville
is questioning the meaning of both spheres of discourse.
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The point of view Melville gives the American captain Amasa Delano has been a central issue
in many interpretations of "Benito Cereno," for it is from his perspective as well as from the
8
promptings of a thirdperson narrator that we are guided through events. In fact, from
Melville's later writing of "The Piazza" as a kind of preface to The Piazza Tales, there is some
indication that perspective is one of the main concerns of these stories. In this sketch, he
suggests two reasons for the narrator's constructing a piazza. It is a vantage point which
blends an inner realm, the home, with an outer realm, the outdoors. It also offers a specific
location from which to observe, and, in so doing, defines what is seen and known: "The circle
of the stars cut by the circle of the mountains. At least, so looks it from the house; though,
once upon the mountains, no circle of them can you see. Had the site been chosen five rods off,
9
this charmed ring would not have been."
"Benito Cereno" (which was to have been the main title of the collected tales) expresses a similar
concern with perspective. As has been widely discussed, the perspective of Amasa Delano is that of
a goodnatured and somewhat liberalminded Northerner from Massachusetts who considers
himself fair, generous of spirit and temperament, able in his craft as seaman, and knowledgeable
about the doings of men. Yet, as has also been generally recognized, he fortunately or unfortunately
exhibits several deficiencies of judgment. He is by some accounts naive, anxious to accept men as
good, and reluctant to see them as evil. The narrator himself intrudes to warn us about this tendency
in the American captain:
Captain Delano's surprise might have deepened into some uneasiness had he not been a
person of a singularly undistrustful good nature, not liable, except on extraordinary and
repeated incentives, and hardly then, to indulge in personal alarms, any way involving
the imputation of malign evil in man. Whether, in view of what humanity is capable,
such a trait implies, along with a benevolent heart, more than ordinary quickness and
accuracy of intellectual perception, may be left to the wise to determine. 10
By some accounts this naivete saves Delano; but according to others it is a grave character flaw
symbolic of the national predilection to take refuge in unwarranted optimism even in the face of
imminent danger.
116
Amasa Delano's mode of perception is similar to legal reasoning in the United States, in which
it posits a realm of knowledge that is objective, clear, and readily accessible. Truth can be
ascertained in an objective manner and applied to a set of observable facts. Any reasonably
competent person can thus reach a correct conclusion. Delano seems to be just such a person,
yet when he applies his customary mode of perception to events aboard the slavecarrying ship
San Dominick, he is more often wrong than right. The story's beginning embodies the paradox
that characterizes Delano's mind: he is uneasy about his emotional self and certain about his
logical self. The gray mists that engulf him warn us to be cautious as we follow his mental
wanderings.
Delano's method of perception depends upon inferences derived from empirical observation.
Initially sighting the floundering Spanish ship, he notes that no colors, as is customary, are shown.
From its position too near to the land, he surmises that the ship is probably in distress. Once aboard
her, he makes a detailed study of shipboard conditions, noting the disorder of the vessel and the
misery of its white crew and black human cargo. He notices the peculiar distribution of some of the
slaves, specifically the hatchet polishers and the oakum pickers, and he is perplexed by the strange
behavior of some of the Spanish crew. His observation of the Spanish captain, Benito Cereno, is
extremely detailed, encompassing his dress, manner, speech, and silence. Don Benito's personal
slave Babo is circumspectly studied as Delano remarks upon his seemingly attentive service to his
master. He observes the maternal behavior of the slave women with some degree of delight and
comments upon everything from the behavior of the mulatto servant to the apparent mistreatment of
the unbowed, statuesque Atufal.
According to his method of reasoning, all of Delano's conclusions should have led to a clear and
verifiable result. But this does not happen. Instead, his conclusions often contradict one another. He
should have been able to distinguish the source of menace aboard the San Dominick, and to decide
whether it resided within the white Spanish crew or within the unfettered but still enslaved blacks.
He should have been able to distinguish whether Atufal was a remorseless rebel punctually brought
forth to punishment or a coconspirator in an active rebellion. He might have discerned
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whether Babo was a docile servant or a headsman holding a white man to the block. And he
could have concluded that Benito Cereno was either a weak captain or the allpowerful
emissary of an empire. In his attempt to resolve these contradictions, Delano relies upon logic,
ordering events that would otherwise appear curious or inexplicable:
First, the affair of the Spanish lad assailed with a knife by the slave boy; . . . Second, the
tyranny in Don Benito's treatment of Atufal, the black; . . . Third, the trampling of the
sailor by the two negroes; . . . Fourth, the cringing submission to their master, of all the
ship's underlings, mostly blacks; . . .
Coupling these points, they seemed somewhat contradictory. But what then, thought
Captain Delano, glancing toward his now nearing boat what then ( "B.C.," pp. 7879)?
In a repeated habit of mind, he dismisses what does not fit his preconceived assumptions and
elevates those observations that strengthen his prior convictions.
Although a deceptive drama of role reversal between master and slave is being enacted before his
eyes, Amasa Delano could have been expected to decipher the mystery because in potential he had
already done so. Many of his mental processes seem to be strategies designed to keep him from
knowing what he already knows, just as Pierre seemed to have already absorbed the contents of the
Plinlimmon pamphlet without consciously understanding it, and the lawyer seemed to recognize
Bartleby without really knowing him. Running parallel with Delano's logical reasoning are his
"loomings" or "portents," his instinctive feelings of unease and incertitude. The world of the ship
takes on a dreamlike state wherein the American captain is always in danger of losing his anchor in
reality. Early on he has "misgivings" and is affected by "a deception of the vapors" ( "B.C.," p. 47).
He is often suspicious, surprised, startled, and anxious, feeling "an apprehensive twitch in the calves
of his legs" ( "B.C.," p. 59). He is momentarily carried away by "a dreamy inquietude," charmed and
"becharmed anew" ( "B.C.," p. 74). He is "not unbewildered" and experiences a "qualmish sort of
emotion" resembling "incipient seasickness" ( "B.C.," pp. 75, 76).
When he is besieged by such feelings, Delano's mind does not impose order upon experience but
rather moves in a totally different manner. Ideas flash and twinge, swarm and sweep. They are
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"insensibly suggested" and accumulate through "sudden indefinite association" ( "B.C.," pp.
87, 93). At a pivotal moment of anxiety, when he hears the tolling of the flawed bell, Delano's
insights into actual events become "a fatality not to be withstood" ( "B.C.," p. 96). In such
moments, his mind discards its orderly methods, denying both logic and its means of
expression, language: "In images far swifter than these sentences, the minutest details of all
his former distrusts swept through him" ( "B.C.," p. 96). Images rather than words, instinct
rather than logic, disclose the hidden surface beneath the facade of the San Dominick.
Delano's suppression of feelings and elevation of reason allow him to remain in a world where good
and evil are almost indistinguishable, and he seems to remain a benevolent man trying to do his best
as he makes his way through a murky realm of undisclosed forces. If he had relied upon his instincts
rather than his reason, he could conceivably have seen the situation as it was: a Spanish crew held in
bondage by a desperate group of rebel slaves. But how would a more accurate perception of events
have altered his response? In any case, he would have felt himself compelled to recapture the ship
and to restore what he took to be the natural order of things by reinstating masters and reenslaving
slaves. He had always been aware of the secret nature of things and the "hinted of twentyfour
pounders" ( "B.C.," p. 83). He had always secretly relied upon the inevitability of force as he
repeatedly eyed the empty ocean for a glimpse of his familiar ship. He had referred to both the
blacks and his own crew as like "Newfoundland dogs," seeing slavery and repressive force as linked.
He had even contemplated not only recapturing the Spanish ship but taking command of it himself,
thereby allaying his anxiety about Captain Benito Cereno"s motives but also giving expression to
his suppressed aggressiveness. No matter how he had perceived events, he would have acted the
same way. Thus, he is equally prepared to trample upon both Benito Cereno and Babo in their final
desperate struggle.
The question then becomes why was it necessary for Amasa Delano to rely upon the mental
processes that he did and what was gained by it. By maintaining the primacy of legal reasoning,
Delano was able to preserve his image of himself as benevolent. He could see himself as a good
man, untainted by the evil surrounding him.
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By suppressing his suspicions about a slave uprising and substituting Benito Cereno's story as
dictated by Babo, he was able to bury the idea that he could be an object of hatred, that he
deserved to be so because of his complicity in the condition of slavery. He could thus imagine
himself as fundamentally different from the aristocratic Benito Cereno, holder of slaves and
representative of a despotic and dying regime. He could dissociate himself from the negative
qualities that would destroy his identity as an American.
Translated into political terms, Delano represents midnineteenthcenturyAmerica caught in the
dilemma of slavery. Like Delano, America needed to maintain its selfimage as a free society, living
out the revolutionary promise which had given it birth. But it was also faced with the fact that one
sixth of its population was slave. In 1856, although the law concerning slavery was not entirely
determined, it was becoming increasingly clear that force was needed to maintain the order of a
country halfslave, halffree. Slavery, the antithesis of freedom, thus became a kind of test of
democracy itself. Slave rebellion could be seen by abolitionists as well as by slaves as a re
enactment or extension of the American revolution. If such a rebellion was doomed to failure, so
also might the idea of America be fatally flawed.
By hiding behind the cloak of legalism in suppressing slaves, the legal authority in the United States
could detach itself from any likeness to tyranny. Such was part of the role of Northern liberals, men
like Judge Shaw, who, in the name of a free society, returned individuals to slavery. They did so by
claiming the law demanded nothing less and nothing else. They could thereby evade complicity in
the guilt of Southern slaveholders. America could see itself as innocent and different in kind from
other oppressive powers rather than as the newest participant in an old tradition. In Melville's story,
however, the two captains merge, as Delano becomes Cereno in a new form. 11
The chronological order of "Benito Cereno" raises further questions about the kind of order imposed
through law as well as about its effects. "Benito Cereno" begins with the story of what supposedly
happened and is followed by an apparent clarification of what happened through the "official"
documents pertaining to the events. The final few pages conflate two important episodes. The first
one is a conversation between the American and Spanish
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captains, which took place some time after the recapture of the San Dominick but before their
arrival in Lima for the trial of the rebel slaves. Hence its strictly chronological position in the
narrative ought to have been between the story of the events and the introduction of the legal
documents. The second episode is the enactment of the verdict of the court, the beheading of
the rebel leader Babo. This, chronologically, presumably should have been placed right after
the documents that rendered the judgment. Disruption of narrative order thus allows for
rebellion against formal constraints, but it also illustrates why rebellion inevitably failed. 12
Early in the narrative the reader is given a perspective that projects ahead to a point in time he could
not yet know about. The thirdperson narrator circumscribes the narration of events within a time
frame that is already in his own past. He knows the conclusion before the story begins and this leads
us to infer that he probably knows "what really happened." As early as the second paragraph, he
speaks in a retrospective voice. In commenting upon Delano's first sighting of the San Dominick, the
narrator informs us: "Ships were then not so plenty in those waters as now" ( "B.C.," p. 46). This is
a voice that speaks with the knowledge of things past as well as things present, suggesting to the
reader that what we think we know in the present involves what we remember of the past. The
narrator invokes the same voice in describing Delano's questionable insight. He refers to the nature
of things "at that day," thereby taking a detached view of the things Delano saw in the past ( "B.C.,"
p. 47). The narrator also points ahead from his own present to the future and to us. Thus he declares:
"Whether in view of what humanity is capable such a trait implies, along with a benevolent heart,
more than ordinary quickness and accuracy of intellectual perception, may be left to the wise to
determine" ( "B.C.," p. 47). The final interpretation of events is thus left openended, and the task is
assigned to some other people living in some future time.
This process of disrupting narrative order subverts the kind of order established by law. Within the
law a definite decision must be reached in the present moment, like that represented in the legal
documents. The method employed to reach such a decision depends upon verifiable facts, the
testimony of witnesses, and the
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impartiality of judges. The results of the verdict suppress disorder and restore order. The
execution of punishment signifies a definite end and becomes a ritual of closure through which
we are made to feel that the matter is settled. The case becomes a discrete point in time,
complete and immutable, and it takes its place in a series of such points that trace the line of
the law from a hypothetical beginning to a precise present moment. Yet by disrupting this
order, Melville is suggesting something quite different.
Melville's disruption of narrative order both encourages rebellious forces and at the same time
suppresses them, and, in so doing, mirrors the polarized tendencies of midnineteenthcentury
American law, especially regarding slavery. From this perspective the law does not provide final
answers to difficult questions, although it purports to do so. The law's apparent consistency is an
illusion, since the facts that determine its shape are not objective but instead represent dominant
ideological interests. The law is not an accurately traced line gradually drawn in a foreseeable
direction. Rather, it takes the shape of a closed circle with its center emanating from the power
structure of the society and radiating back and forth, to and from that central point. It is not a
spiraling or rotating circle that moves from point to point, but a stationary circumscribed form that
neither revolves nor evolves because no new forces have a means of entering it. Just as the slave
ships plied the same sea routes back and forth on the same errand, so too did slave law cover the
same ground by its repeatedly repressive decisions.
Melville's text, through disruption of linear form, tends to work against the notion of the progressive
line of the law. By eliminating vital points within the story line, either by omission of information
and detail or by the lack of an authoritative narrative viewpoint, he creates gaps or points at which
new forces can enter. Hence, within the text he creates the possibility of rebellion. One of these
forces is the reader, who is called upon to enter from a future time and use his memory to interpret
events and to read possible meanings back into the story. This is demonstrated within "Benito
Cereno" in two ways. First, by setting the story in the revolutionary past of 1799 and simultaneously
addressing it to the reader of 1856, Melville is implicitly calling upon the contemporary reader to
remember and reinsert his historical knowledge into the text. The
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contemporary reader is given clues within the text that hint at forces not explicitly revealed.
Thus, he might have recalled the slave revolts in Central America in 1799, a period that
coincides with events aboard the San Dominick. He could also have drawn upon his awareness
of the numerous slave revolts which occurred throughout the 00's and which might have
alerted him to the falseness of his stereotype of the passive, docile, and happy slave. The
Amistad and Creole decisions in favor of freedom could have been contrasted with the climax
of "Benito Cereno," and current tensions over fugitive slave cases might have contributed to
the picture of slavery outlined within the story. 13 Any and all of these elements would have
provided a subtext to the story of rebellion and its violent suppression.
The story is also addressed to the reader in some future historical period. Like the voice of the
narrator, the story points backward and forward in time. It can be assumed that the future reader will
bear a heavier historical burden because of the greater passage of time. Therefore, there can be more
potential meanings which can be inserted into the form of the story. Contemporary criticism of
"Benito Cereno" would seem to bear this out. A recent interpretation compares the rebellion aboard
the Spanish slave ship in 1799 to the prison uprising in Attica in an attempt to understand the
relationship between rebellion and repression. 14 Similarly the civil rights movement has
engendered readings of the story that did not seem to be possible prior to the 1950's and 1960's. This
would verify Melville's implicit suggestion that events only appear to be definitively settled by law,
while in fact they could be unsettled as they are remembered and reinterpreted over time.
Another force which potentially could disrupt established order is the slave. As has been noted by
various critics, "Benito Cereno" is an attempt to insert the voice of the voiceless into American law
through the actions of the rebel leader Babo. 15 It is well known that severe slave codes forbade the
black man from testifying in his own defense but demanded that he bear witness against himself. In
his 1789 "Letter on Slavery," an anonymous Negro writer identified this inconsistency:
Consult even those milder and subordinate rules for our conduct, . . . those laws, which
allow us to be men, whenever they consider us as victims of their
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vengeance, but treat us only like a species of living property, as often as we are to be the
objects of their protection those laws, by which (it may be truly said) that we are bound to
suffer, and be miserable, under pain of death. . . .
Like the events in "Benito Cereno," this letter emerges out of a revolutionary period and draws upon
ideals basic to the formation of America. Implicit in Babo's revolt is the natural right of man to
violently throw off injustice that cannot otherwise be abolished. The "Letter" states a similar view:
To attempt an escape from the cruelties exercised over us, by flight, is punished with
mutilation, and sometimes with death. To take arms against masters whose cruelty no
submission can mitigate, no patience can exhaust, and from whom no other means of
deliverance are left, is the most atrocious of all crimes . . . and if the slave take up arms
for his deliverance, he acts not only justifiably, but in obedience to a natural duty, the
duty of selfpreservation.
Like American revolutionary heroes who had justified rebellion through the tradition of a higher
natural law, a slave rebellion could be seen as an extension of these universal principles. Almost in
anticipation of Melville's enactment of master/slave role reversal on the Spanish slave ship, the
Negro writer continues:
Before you boast of your superiority over us, place some of your own colour (if you have
the heart to do it) in the same situation with us, and see, whether they have such innate
virtue, and such unconquerable vigour of mind, as to be capable of surmounting such
multiplied difficulties, and of keeping their minds free from the infection of every vice,
even under the oppressive yoke of such a servitude. 16
Melville seemed to have the heart to do just that in "Benito Cereno" in an attempt to demonstrate the
interconnection between freedom and slavery, as well as rebellion and repression. In so doing he
also substantiated the power of circumstance over virtue. For when white men stand in the place of
black men, their conduct is marked by the same desperation to survive.
While allowing rebellious forces to enter, the text also works to expel them. This dichotomy re
enacts contemporary slave law, which simultaneously aroused dissent and demanded its
suppression. The story's form reinforces the structure of the closed stationary circle, which, like the
dome covering the nation's capital,
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solidified the inflexibility of the law. The actual center of the story is the conversation between
the two captains, the two authority figures on their journey to document their authority in law
officially. Rather than vindicating Amasa Delano's innocence, which resulted in the
restoration of order, the passage suggests that his naivete, supplemented by force, solidified his
aggressive ideology. Benito Cereno's melancholy, instead of expressing tragic insight, could be
a means of withdrawal from his complicity in tragic events. His refusal to face Babo indicates
his inability to recognize himself and the symbiotic relationship between victim and victimizer.
It is this lack of recognition that leads to his demise, a fate that may, in the future, cast a
shadow over America's innocence as well. As if to punctuate the stationary circle of law, the
head of Babo fixed upon a pole looms over the white power structure and with almost
panoramic scope surveys the array of forces that placed it there.
Thus there are several possible reasons why rebellion inevitably fails, as indicated through the
discontinuity in linear form. In order for readers to enter the text and fill various narrative gaps,
there must be some distance between events and one's relationship to them. This seems to be a
perspective that can only be achieved slowly over time. Among Melville's public, the lack of readers
who could fill these gaps would seem to indicate that the more powerfully one's vital interests were
threatened, the less likely one was to acknowledge the threat. Selfinterest dominated over public
interest but at the same time put itself at greater risk. Furthermore, when under pressure, the
impulse of dominant legal forces is to constrict rather than expand the circumference of law, by
narrowing decisions. Law thereby maintains order but increases the tensions which will ultimately
cause the circle to explode.
Other features of Melville's narrative subvert the forces of rebellion that the text strives to generate.
As is now recognized, "Benito Cereno" is based on an historical source, A Narrative Of Voyages
and Travels in the Northern and Southern Hemispheres, written by an actual Amasa Delano,
published in 1817 and concerning events that occurred in 18041805. 17 The relationship of
Melville's fictional account to his original historical source calls into question the validity of law as
a basis for justice and thereby increases our distrust of settled forms.
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Melville's use of an historical source in the creation of "Benito Cereno" presents certain
unique features. From his earliest book Typee, questions concerning the relationship between
fact and fiction had been raised both within the text as well as by readers of it. The author of
Typee claimed that he was narrating true things even though some contemporary readers
assumed them too fantastic to be real. Toby's verification was eventually published as a kind
of vindication of the book's authenticity. When he published Mardi in 1849, the author was so
interested in the problem that he began the novel with a preface stating the following:
Not long ago, having published two narratives of voyages in the Pacific, which, in many
quarters, were received with incredulity, the thought occurred to me, of indeed writing a
romance of Polynesian adventure, and publishing it as such; to see whether, the fiction
might not, possibly, be received for a verity: in some degree the reverse of my previous
experience.
This thought was the germ of others, which have resulted in Mardi. 18
In one sense Mardi can be viewed as an extended meditation on the relationship between fact and
fiction and the implications of the substitution of one for the other. MobyDick further explores this
tension by beginning with a compilation of citations purporting to be voluminous in scope and
authoritative in nature. Throughout the novel, sources are used and misused, cited, sometimes in
parody and sometimes in earnest, and even sometimes uncited. Israel Potter, the serialized novel
published just prior to "Benito Cereno," selfconsciously calls attention to its source in its
dedication:
From a tattered copy, rescued by the merest chance from the ragpickers, the present
account has been drawn. . . . Well aware that in your Highness' eyes the merit of the
story must be in its general fidelity to the main drift of the original narrative, I forbore
anywhere to mitigate the hard fortunes of my hero. . . . 19
In view of Melville's continued interest in the relationship of fact to fiction, the publication of
"Benito Cereno" without mention of a source is somewhat curious. It seems he had originally
planned to publish the story with the source as a kind of subtitle, but he changed his mind. In a
letter to his publishers 16 February 1856, he explains: "In the corrected magazine sheets I sent you,
a M.S. note is appended to the title of 'Benito Cereno'; but as the book is now to
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be published as a collection of 'Tales', that note is unsuitable and had better be omitted." 20 A
further explanation is possible, for in a work that raises the issue of present understanding as
embodying knowledge of the past, it seems peculiar that the author would deliberately remove
any reference to the historical event upon which he based his own narrative. Narrative
procedure thereby undercuts suggestions of the narrative content. If the 1856 reader of
"Benito Cereno" were being implicitly asked to recall prior slave rebellions, apply this
knowledge to the slave revolt aboard the San Dominick, and thereby gain a fuller
understanding of the contemporary crisis over slavery, why would the author have suppressed
the actual historical slave revolt aboard the Spanish ship Tryal?
By removing all reference to his source material, Melville may be speculating upon the nature of
historical material itself. Historical material can not only be inserted into a text but can willfully be
omitted, and, perhaps even more strikingly, it can be altered with no awareness of this alteration.
Thus history itself enters the realm of fiction and becomes part of it. This is what happened in
"Benito Cereno," which until the discovery of Delano's account as a source for Melville's story by
Harold Scudder in 1928 was taken to be a pure fiction. 21 The effect of obliterating the historical
source is to minimize the importance and validity of an actual record and to conflate the realms of
history and fiction. Such a deliberate erasure of history switches the emphasis from what actually
happened to how we come to decide what happened and then enshrine it in an official version. This
erasure removes the objective ground for any specific version of reality.
Once critics were aware of the historical source upon which Melville based his story, arguments
arose about the relationship between the story and its source. Scudder's discovery of Delano's
account led him to conclude that Melville "merely rewrote this chapter including a portion of one of
the legal documents appended, suppressing a few items, and making some small additions." 22 C.
Hartley Grattan Introduction to the Narrative holds a similar view: "With some strokes of his pen
and not so many at that Melville transformed the event into one of his most effective short stories,
'Benito Cereno'" ( Narrative, p. vii). Many critics, however, have focused on the numerous
alterations Melville made and how they affected the content of the story as well as its
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aesthetic merit. 23 A further examination of features of this somewhat obscure historical
narrative makes it possible to conclude that Melville may have been interested in this account
because it, too, reveals the questionableness of "facts."
Melville seems to have generally adopted the personality of the historical Delano for his own story,
but he also adapted it to his own purposes. The actual Delano appears to be a relatively fairminded
practical man, although he seems somewhat lacking in Yankee ingenuity. Yet perhaps the essential
feature of his personality that might have interested Melville was his disingenuousness. Delano's
selfportrait is selfserving. His image of himself is decidedly luminous despite the emergence of
some ominous shadows. Like Melville's Delano aboard the San Dominick, he does not wish to see
himself in an unflattering light. In his preface the historical Delano states that his selfdevelopment
was curtailed, presumably by disruptions related to a revolutionary period:
In undertaking this work, I was aware of the difficulties which I should have to
encounter, in consequence of my want of an early and academic education, although I
have always seized every possible opportunity during my whole life for the improvement
of my mind in the knowledge of useful literature and those sciences that are immediately
connected with the pursuits to which I have been professionally devoted ( Narrative, p.
17).
The sentence begins with a seemingly humble acknowledgment of deficiency but turns into a kind
of special pleading. It also reveals the captain to be an authority figure who might harbor animosity
towards revolutionary forces because they had limited his own chances for success by interrupting
his education. Neither of these qualities seems far removed from the fictional American captain.
The actual Delano's selfserving attitude is especially apparent in Chapter 18, which tells of the
slave rebellion aboard the Tryal. Here too he portrays his motivations and actions as generous and
wellintentioned, but he simultaneously reveals his desire for personal profit and public
acknowledgment. Failing to attain these goals, he turns his own failure outward and blames others:
When I take a retrospective view of my life, I cannot find in my soul, that I ever have
done any thing to deserve such misery and ingratitude as I have suffered at different
periods, and in general, from the very persons to whom I have rendered the greatest
services ( Narrative, p. 331).
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As part of the documents, he includes his correspondence with officials, which reveals his real
attitude:
I had been assured . . . that all my conduct, and the treatment I had received, should be
faithfully represented to his majesty Charles IV, who most probably would do something
more for me. I had reason to expect . . . that I should most likely have received
something essentially to my advantage ( Narrative, p. 350).
Failing again to achieve his desire, he places the blame elsewhere: "This probably would have been
the case had it not been for the unhappy catastrophe which soon after took place in Spain . . ." (
Narrative, p. 351). Upon receiving a medal which he evidently did not really value he writes: "It is
particularly gratifying to me . . . [to receive] the token of his [the King's] royal favour in the present
of the golden medal bearing his likeness. The services rendered off the island St. Maria were from
pure motives of humanity" ( Narrativep. 352). Such duplicity of motivation might have been
intriguing to Melville and have suited his own narrative purposes.
Amasa Delano's narrative procedure might also have interested Melville, who subsequently
subverted it within his fiction. In his preface, Delano offers an apology for his flawed text, once
again appearing to assume responsibility but simultaneously deflecting it elsewhere:
I know that the book is unequally written, that the order is not always as happy as it
might have been, that the facts and observations are miscellaneously presented to the
reader, and that sometimes those belonging to the same subject are separated from each
other at too great a distance. The nature of the narrative is such as to render it of
necessity miscellaneous in a high degree . . . ( Narrative, p. 18).
Characteristically he then goes on to shift the focus from his own inexperience as a writer to
problems with printing which began before his manuscript was revised. Thus we find some odd
admissions: that facts and observations are not necessarily presented in a causeandeffect
relationship, that sometimes a subject may be presented without all relevant material pertaining to
it, and that the narrative is "miscellaneous" and defective in arrangement.
The question then arises, how can we accept the events and documents presented in Chapter 18 on
which Melville based his account? Since this chapter purports not only to narrate events but
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to supply official substantiating documentation, why should we believe that all relevant
materials have been included? Problems of narrative method as well as the selfserving nature
of Delano's account further compromise the validity of his story. Melville may have adapted
Delano's explanation when he states in "Benito Cereno": "Hitherto the nature of this
narrative, besides rendering the intricacies in the beginning unavoidable, has more or less
required that many things, instead of being set down in the order of occurrence, should be
retrospectively, or irregularly given" ( "B.C.," p. 114). Melville's manipulation of narrative
order increases our distrust of the illusion of the completeness and factualness of his own
fictional account.
The reappearance of Delano's own narrative further suggests that the facts of the historical source
and potentially those of any historical source are questionable and are manipulated so as to protect
the status quo. 24 Delano presents a highly mediated version of events. Although narrated in the first
person his account begins by drawing upon the records of his ship, "an extract from the journal of
the ship 'Perseverance' taken on board that ship at the time by the officer who had care of the log
book" ( Narrative, p. 318). 'The journal entry tells the story of events which Delano then repeats and
embellishes. The captain seems to be drawing upon the journal as a verification of events. Yet when
this same officer is called upon to testify before the legal tribunal, he does not speak directly as a
witness present at the events and capable of telling what happened. Instead he uses the previous
testimony of Delano to verify his own. His declaration states:
that he knows that his captain Amasa Delano has deposed on everything that happened
in this affair; that in order to avoid delay he requests that his declaration should be read
to him, and he will tell whether it is conformable to the happenings of the events; that if
anything should be omitted he will observe it, and add to it, doing the same if he erred
in any part thereof ( Narrative, p. 345).
Each story is an indirect version of events and each account draws upon the other to corroborate its
own authenticity. Furthermore, the officer Luther relied upon a version of Delano's deposition "read
to him through the medium of the Interpreter" ( Narrative, p. 345). The quality of the translation is
itself questionable, as indi
130
cated in Luther's deposition: ". . . but the Interpreter did not sign it because he said he did not
know how" ( Narrative, p. 346).
The problem of translation is central to the problem of the transmission of the official story in the
court of law. Not only would any translation of necessity differ from an original version, but in these
court proceedings translators were acknowledged to be deficient. As Delano explains it: "My
deposition and that of Mr. Luther, were communicated through a bad linguist, who could not speak
the English language so well as I could the Spanish, Mr. Luther not having any knowledge of the
Spanish language" ( Narrative, p. 331). Not only were translations faulty but there were multiple
versions of them, as "The Spanish captain's deposition, together with Mr. Luther's and my own,
were translated into English again, as now inserted, having thus undergone two translations" (
Narrative, p. 331).
Delano's statements which introduce the documents express two contradictory but highly significant
principles operative during the legal proceedings at Lima. On the one hand, he claims official status
for these documents and confers upon them a definitiveness that eventually results in a verdict of
capital punishment. Thus he begins by saying: "The following documents were officially translated
and are inserted without alteration from the original papers" ( Narrative, p. 331). The purpose of
supplying these documents is to give the reader "a better view of the subject than any other method
that could be adopted" ( Narrative, p. 331). In the captain's view, these documents, despite their
highly mediated quality and the faultiness of translation, represent the best attainable view of the
subject. On the other hand he seems to acknowledge inherent problems with these same documents.
By apologizing for faulty translations, he hopes to clarify for the reader "any thing which may
appear . . . not to be perfectly consistent, one declaration with another, and for any impropriety of
expression" ( Narrative, p. 331).
Although men will lose their lives based upon the statements contained in these legal depositions,
there is no attempt to investigate any discrepancies in the testimony of witnesses. Linguistic
mistakes become incorporated into the official testimony and are corrected by Amasa Delano,
whose selfserving posture undermines his credibility. The inconsistency in testimony is not
questioned because the primary purpose of the legal proceedings is not
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to find out what happened but to give legal sanction to the proceedings. The law reaffirms the
order restored by Delano and punishes the disorder aroused by the rebellious slaves. The
supposed objectivity of the law, which is based upon reliable witnesses and verifiable evidence,
is thus revealed to be highly questionable.
It is interesting to note that a document recently introduced by Joshua Leslie and Sterling Stuckey
provides "an official statement preserved by the Spanish authorities," which corroborates some of
the implications of Delano's narrative that were then adapted by Melville. The central concern of the
Spanish crown seems to be "that the property and lives of those engaged in the slave traffic not be
lost." This corresponds to Delano's concern that no slave be unduly harmed or killed because that
would reduce the commercial value of the cargo as well as his own potential share in any profits.
Similarly, the representative body of the Spanish crown, the Consulado, was "practically given
authority of state in judicial and military matters and, in theory, was to leave nothing to chance."
The goal was to maintain order in such a way as to reduce the possibility of rebellion and maintain
the flow of trade. 25 The historical Delano was also interested in maintaining order in a profitable
way as defined by the insurers of the ship:
The law has wisely restrained the powers of the insured, that the insurer should not be
subject to imposition or abuse. All bad consequences may be avoided by one who has a
knowledge of his duty and is disposed faithfully to obey its dictates ( Narrative, p. 326).
Melville's fictional captain also obeys the dictates of duty as he supplies the force needed to restore
order.
Like the documents created by Melville and modelled upon those provided by the historical Delano,
the documents of the Consulado are somewhat dubious. Even though they are closest to the source
of the events, and even though they purport to be an official statement, they reveal their own
deficiencies: "We produce this report in compliance with your superior order and are willing to
overlook the fact that regular legal procedure has not been followed through the issuance of
customary documents involving special tribunals, which was not done in this case." 26 Thus once
again official documents do not follow prescribed form. Yet by
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relying upon their official form, these documents reinforce the powers represented in them.
The effects of Melville's adaptation of his source indicate that he was interested in how selective
facts and their inclusion in an official form determine human experience. Melville seems to have
extracted much of the basis for the fictional portion of his story from the legal documents of his
source. He then created fictional documents based on historical accounts to substantiate his own
narrative. Thus he seems to have used issues of law as a basis for fiction and then created the
illusion of fact through legal documentation. The restoration of the historical source magnifies this
distortion and intensifies the manipulated quality of both fiction and law that further undermines
our confidence in either. The accentuation of the manipulated character of socalled objective legal
documents makes the results brought about by legal judgments appear unjust.
Melville also seems to have accentuated the problems of legal form which he found in his source
material. He includes and extends the difficulties that the historical Delano merely glossed over.
Melville's narrator introduces his documentary record with a statement similar to Delano's version.
The fictional statement also reflects the discrepancy between the "officialness" of the documents
and their inherent contradictions. Thus the narrator explains: "The following extracts, translated
from one of the official Spanish documents, will it is hoped, shed light on the preceding narrative,
as well as, in the first place, reveal the true port of departure and true history of the San Dominick's
voyage" ("B.C.," p. 103 ). Although citing its official status, the narrator undercuts the document
with his qualified language as well as his selection of only one of many possible documents. He
further subverts the validity of the deposition by identifying it as a partial translation of one witness
who may or may not have been mentally unstable. Only Benito Cereno's testimony is accepted
because other witnesses corroborated it rather than because it offered direct evidence.
The legal documents Melville creates increase the problems of those presented in his source. Like
the historical documents, the fictional documents are provided as an explanation of mysterious and
troubling events. But Melville qualifies this also: "If the Depostion have served as the key to fit into
the lock of the compli
133
cations which precede it, then, as a vault whose door has been flung back, the San Dominick's
hull lies open today" ("B.C.," p. 114 ). The documents are presented in such a way as to raise
doubts about their validity. The narrator consistently intervenes with commentary, calling
attention to lists which are omitted, documents which are unspecified, and recollections of
which only portions are offered. Events are selectively reported and selectively suppressed,
and the reader does not know what material would have been relevant to events had it been
included. The reader then becomes even more uncertain as to the significance of the material
that is provided. In a rather heavyhanded way, the narrator obliquely refers to large blocks of
material that he will not tell us about. Yet he does supply what is needed to convict the rebel
slaves:
The deposition then proceeds with recapitulatory remarks, and a partial renumeration of
the negroes, making record of their individual part in the past events, with a view to
furnishing, according to command of the court, the data whereon to found the criminal
sentences to be pronounced ("B.C.," p. 111 ).
The documents are created to supply the official grounds for the preconceived verdict, thereby
reflecting midnineteenthcentury society which used the law to reinforce the already established
fact of slavery.
A comparison of Melville's text and Delano's narrative indicates that, despite the many substantial
changes that transformed a rather prosaic account into a literary work, there are some changes in the
story that seem to be willful and without apparent purpose. In several cases the legal documents
created by Melville are almost exactly the same as those given by the historical Delano. While it was
often Melville's compositional practice to "lift" passages from his sources, sometimes making only
minor changes, his use of this procedure when dealing with socalled "official" documents could be
motivated by a specific impulse. By making minor alterations, such as those relating to time periods
and numbers of slaves, and by elaborately marking deletions where omissions are slight, he perhaps
reveals a desire to change material just for the sake of change. When the original source is
suppressed, these changes are not apparent at all. Thus Melville's version of events seems the
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only version. Alterations that are not labelled as such come to be the accepted facts. When the
original narrative is restored and placed in relationship to Melville's story, alterations appear
and then cast doubt on the believability of the entire narration. When the original source is
also confusing and contradictory, the whole enterprise of attempting to reconstruct what
happened becomes doubtful.
In a sense "Benito Cereno," like "Bartleby," demonstrates the same possible void beneath the
surface of accepted norms, but it does so in a different way. Whereas the copyists in "Bartleby"
sought to disguise the void by writing limitless exact reproductions of a hypothetical original,
"Benito Cereno" emphasizes the gradual and manipulated changes that occur within each official
version of events. Alteration replaces reproduction, but the result is the same: to prevent the
disclosure of the emptiness underlying our established belief systems. If this nothingness were to be
revealed, the objectivity and validity of these systems would be undermined and possibly subject to
change by forces antagonistic to established forms.
The narrative form of "Benito Cereno" indicates Melville's growing concern with the power of law
not only to shape our beliefs but also to determine our actions. Throughout his major fiction he had
dealt with these issues, but it is in "Benito Cereno" that he incorporates legal form into narrative
form. His judgment in doing so has been the subject of much critical commentary. George William
Curtis (the publisher's reader) wrote in April, 1855:
Melville's story is very good. It is a great pity that he did not work it up as a connected
tale instead of putting the dreary documents at the end. They should have made part
of the substance of the story. It is a little spun out but it is very striking and well done.
. . .
Three months later Curtis suggested to the publisher that he alter "all the dreadful statistics at the
end" before publishing the story. 27 Leon Howard discusses the possibility that Melville may have
been under stress while composing the story and thus did not properly develop the two parts into
one whole. He also speculates that the lengthening of the story could have been an economic
consideration. 28 Charles G. Hoffman offers a summary statement of the
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negative view of the legal portion of Melville's tale. He sees the purpose of the documents as
providing an "air of verisimilitude and authenticity" which the author had to include even
though they amount to an anticlimax:
The document is not an integral part of the main narrative, it differs in style, tone and
mood. It is, as it was in Delano's own account, an appendage to the narrative itself.
Perhaps Melville was following his source too closely. . . . Perhaps because the
documentary excerpts are so different in style, tone and mood, they do not interfere with
the total effect of the main narrative but are a kind of epilogue to it, which while
necessary to the narrative is as much outside it as the actual trial was outside the events
that had happened. 29
Other critics have seen an interconnection between the two portions of Melville's text. Richardson
sees the legal documents as a mechanism of further distancing the reader from events that are not
verifiable and thereby emphasizing the extremely limited view of the legal sphere. 30 Guttman also
sees the documents as relevant because legalistic pretensions are the very thing Melville is
subverting. 31 Dryden, in his book Melville's Thematics of Form, is suggestive when he states that
the theme of "Benito Cereno" is in part "the fictitiousness of social, political, and religious
forms . . . The forces of darkness and chaos achieve their greatest success when they take on and use
the forms which men create in order to convince themselves that they live in an ordered world." 32
Rather than being unrelated to the narrative portion of "Benito Cereno," the legal documents are an
intrinsic and therefore vital aspect of the entire text. Despite the difference in tone the two parts are
connected just as the events and the trial are inextricably linked. The correspondence between the
event and the trial reproduces the historical process by which actions generated by those in power
are legitimized through law which then increases the possibility of future similar actions. The use of
legal documents does not necessarily undermine the events they purport to clarify but also gives
support to the dialectical interplay of the nature of events and the sanction of law. The discrepancies
apparent in Melville's fictional documents not only magnify the incapacity of law to clarify events
and enact justice but also reveal the tendency of law to partake of the manipulated quality of events.
Without the inequities of the law as revealed in the trial, the murderous events aboard the San
Dominick would have been unlikely to occur.
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Without the rebellious uprising, there would have been no need for the manipulated trial and
the predetermined verdict. Thus, within Melville's text law is seen to be intricately connected
with the political realm rather than operating in isolation from it. Politically, law and event are
parts of a whole, just as contextually narrative and document form a single story.
Just as law is enmeshed in society so, too, is literature immersed in law. Law serves as the outline or
framework of society itself. Without official rules and regulations to govern, sanction, and punish
human conduct, there would be no means for human beings to join together in communities.
Without society there could be no form of representation, because there would be nothing to
represent and no conflict to resolve, as Henry James observed. But whereas James perceived a
thinness in the American social structure and defined it in terms of what it lacked, perhaps he did
not adequately focus upon the characteristics it did possess, sometimes to an excessive degree. One
of these qualities seems to have been its overreliance on law to settle a multitude of societal
conflicts. A literary work would thus in some way replicate this tendency. Since the period in which
"Benito Cereno" was composed and published was a period of intense challenge to socalled settled
law, it is not surprising that a contemporary text would reflect the tensions generated by the
conflicts within the system of law. The law regarding slavery was unsatisfactory and was being
attacked by the rebellious forces it sought to resist. Melville's text does not impose a solution upon
the conflict but instead reflects the quality of irreconcilable opposition characteristic of
contemporary law. Rather than imposing only the restoration of order imagined by those in power,
Melville, through the silent but visible Babo, projected ahead to a period when rebellious forces
would more radically disrupt order through violence.
Whereas in his early book Typee Melville had conceived of a literature capable of being a force of
societal change, by the time of "Benito Cereno" his vision seems to have dramatically shifted. The
attempt to unite word and thing, thought and act, form and matter a desire implicit in the whole of
the American Romantic impulse seems to have given way to a completely different and
diminished perspective. No longer does Melville create characters such as Marnoo, who is a type of
the living embodiment of the
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word. There is only one Queequeg upon whose body is inscribed a secret message which his
actions strive to translate. For Melville writing in the middle 1850's, the embodiment of the
union of word and act is law. Law, not literature, is the verbal construct that literalizes reality,
transforms ritual into action through trial, and makes of metaphor the experience of life. For
in a text with a multitude of highly developed symbols, the ultimate symbol is law. For
Melville, the literary act in its representational aspect would have to incorporate the
formalistic aspect of society, not because he necessarily believed in the efficacy of form over
matter but because he saw form, especially legal form, as coming to dominate the society of
which he was a part. Thus in one of his Battle Pieces, "Dupont's Round Fight," he associates
the "measure perfect" in which art moves with the rules followed by "the Fleet that warred
for Right." Both art and war are characterized by unity achieved through form: "A type was
here. / And victory of Law." 33 This was the realization that Billy Budd would suffer.
An earlier version of this chapter appeared in the Arizona Quarterly, 47, no. 2. (Summer
1991),128.
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Chapter 8
Law, Literature, and the Space Between: The Case of Billy Budd
Melville last great, unfinished work, Billy Budd, Sailor (An Inside Narrative), marks the
culmination of his preoccupation with legal concerns as well as his return to fiction, a connection
that may not be coincidental. The central legal dilemmas of this last novel recur throughout the
Melville canon: the demands of society versus individual rights; positivism versus natural law; law
versus morality; head versus heart. The exact reason why Melville returned to a specifically
legalistic theme at the end of his life is unclear. Perhaps the publication of contemporary articles
concerning the Somers Affair reactivated both his personal and his intellectual interest in a case that
had touched him earlier in his life. Or perhaps contemporary articles commemorating Lemuel Shaw
influenced him in shaping some of the conflicts which Captain Vere confronted, as well as the
methods he employed in attempting to resolve them. Or perhaps contemporary events such as the
Haymarket riot impinged upon the central conflicts that developed within the novel. 1 The exact
constellation of historical events that contributed to Melville's last work will probably never be
completely determined. What is clear is that the legal case of Billy Budd includes an attack on the
system of legal reasoning by which society was increasingly and yet almost unconsciously
2 Through the story of the crime, judgment, and execution of Billy Budd, Melville is
dominated.
able to explore features of the legal system that lead to injustice rather than justice. The legal plot
provides the point from which the complexities and limitations of interpretation and judgment
spring forth.
This chapter will explore how the case of Billy Budd provides a radical critique of the legal system.
An examination of the charac
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ter, motivations, and actions of Captain Vere, who attempts to do justice in the case of Billy
Budd, reveals the inadequacies of the closed form of the legal system. I shall also argue that
Melville's attempt to reconstitute fiction as a viable mode of discourse represents an
experiment in form designed to free it from some of the limitations of legal discourse which he
had earlier thought constrained literary discourse as well. By attempting to contain the closed
case of the Handsome Sailor within the open form of his narrative, Melville is attempting to
transcend the limitations of form itself. By trying to free discourse from authority and by
leaving a space between authority and the text where interpretation or judgment can be
inserted, he knowingly tries to cross boundaries and create a new form. Furthermore, the
unusual features of both the composition and publication history of the text (as we have them
through the edition of Hayford and Sealts) add to the openness of the narrative form and have
unique consequences for interpretation. Since Melville had always been a great experimenter
in fictional form, it is reasonable to assume that he conceived of this last work as embodying
something new. Perhaps that element was infinite potentiality.
In Billy Budd the introduction of Captain Vere immediately challenges two major tenets of legal
reasoningthe separation of law from other human events and its claim to objectivity. 3 Vere is
presented only after several digressions offered by the narrator (Chapters 3, 4, 5). The digressions
reveal some of the biases of the narrator, as well as his method of historical writing. The content of
the digressions emphasizes particular aspects of the historical period revolution, war, and mutiny.
Yet the narrator states that these factors have little to do with what occurs within the ship: "But with
all this the story has little concernment, restricted as it is to the inner life of one particular ship and
4 After raising the unnerving possibilities of war and mutiny, he
the career of an individual sailor."
resumes the narrative by stating: "But on board the seventyfour in which Billy now swung his
hammock, very little in the manner of the men and nothing obvious in the demeanor of the officers
would have suggested to an ordinary observer that the Great Mutiny was a recent event" ( BB, pp.
5960). The narrator thereby reveals the dilemma involving the relationship between outside and
inside events, between history and individual happen
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ings. Did events upon the ship unfold as they did because of the nature of the times? And, if so,
would that not have influenced the supposedly impartial judgment rendered in the case of
Billy Budd? Was the narrator's version of events aboard the Bellipotent biased, just as his
version of history was influenced by his predilections? If so, his claims concerning the
necessity of the law would be undermined.
These problems are further compounded by the narrator's methodology. He claims to be filling in
the historical background against which the story takes place. But once again he reveals the
limitations of historical knowledge. He admits that he is selective because he is writing history with
a bias towards his own views. Some events that may reflect negatively on one's nation are often
relegated to obscurity: "there is a considerate way of historically treating them. If a wellconstituted
individual refrains from blazoning aught amiss or calamitous in his family, a nation in the like
circumstance may without reproach be equally discreet" ( BB, p. 55). Thus history is selectively
created according to the preferences and needs of those shaping the story. Rather than being
impartial and factual accounts, specific versions of events emerge out of the complex
interconnections between the multitude of human happenings and the selection process of particular
5
individuals who shape their stories of experience within the matrix of politics, culture, and values.
The initial description of Vere is a qualified one, because contradictory terms seem to nullify one
another. Vere had always acted competently as an officer "mindful of the welfare of his men, but
never tolerating an infraction of discipline" ( BB, p. 60). He was "thoroughly versed in the science
of his profession, and intrepid to the verge of temerity though never injudiciously so" ( BB, p. 60).
He had sterling qualities but was without any brilliant ones ( BB, p. 61). Vere is a bachelor, and is
captain of the ship Bachelor's Delight. He is connected to other bachelor types in Melville's works,
particularly the Templar lawyers in "The Paradise of Bachelors and the Tartarus of Maids" and the
bachelor lawyers Pierre encounters among the Apostles. A bachelor in these instances is a man cut
off from human experience, not fully mature but wielding a degree of expertise which enables him
to manipulate and live off the labor of others. In some ways Vere substantiates
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this picture. He is distanced from his men and holds a position of authority over them. He
"evinced little appreciation of mere humor" ( BB, p. 60). Usually "he was the most
undemonstrative of men," and he would sometimes show "more or less irascibility" ( BB, pp.
60, 61). Thus, by his manner he increased the space between himself and his men.
Vere's rank in the hierarchy of his ship seems to derive more through position than through native
ability. He is a political and social man rather than a born leader. Unlike Jack Chase, an early type of
the Handsome Sailor, to whom Billy Budd is dedicated, Vere is not one of nature's noblemen,
although that term is applied to him in a different context. Rather he is connected to the upper class
through social connection, and it is partly this relationship that has contributed to his professional
advancement: "Though allied to the higher nobility, his advancement had not been altogether owing
to influences connected with that circumstance" ( BB, p. 60). As a captain, Vere is commendable in
a time "prolific of renowned seamen" ( BB, p. 60). Yet his professional qualities do not seem
intuitive. On board his ship, he appears to be a landsman or a guest. Later it will be the buttons he
wears that testify to his authority to execute Billy Budd. It is the role for which he was trained that
seals the fate of the Handsome Sailor, although it appears that what happens is inevitable. Thus, by
implication, social structure rather than justice is reinforced by the system of law.
Similarly, Vere's role as an authority figure masks the dreamy side of his personality. Like other of
Melville's legalistic characters, such as the lawyer in "Bartleby," Vere embodies a split between
imagination and reason, evident as he gazes off into the blank sea. It seems that for Vere, as earlier
for Ishmael, the sea and meditation are wedded. But unlike Ishmael, Vere does not pursue the
examination of his thoughts. Instead he becomes irritable when they are interrupted and responds by
further suppressing his feelings. Authority demands the inhibition of feeling, a response that
functions prominently in Vere's judgment of Billy.
Vere's marked intellectuality and his love of books also bear upon his method of judgment. Vere
does not have a literary taste "which less heeds the thing conveyed than the vehicle" ( BB, p. 62). He
is concerned with content rather than form and apparently does
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not see the necessary connection between the two. Yet in his speech to the court, in which he
uses the discourse of authority, he will manipulate form to attain a predetermined result. For
him form or process is not an aspect of content but a means shaped to convey a specific
purpose. It is a tool of power. As such, his "conviction" is the thing to be conveyed. In the case
of Billy Budd, it is a literal conviction, because it results in the death of the young sailor. But
within the novel Billy Budd his "settled convictions were as a dike against those invading
waters of novel opinion social, political, and otherwise, which carried away as in a torrent no
few minds in those days, minds by nature not inferior to his own" ( BB, p. 62). The settled
quality of legal judgment is opposed to the possibility of change embodied in the process of
fiction. Thus a tension is established between settled convictions and novel opinions. Settled
convictions act as dikes against the blank sea, while novel opinions rush onward.
Vere's judgment is also impeded by his mediated view of experience. His active post of authority
inclined him to "books treating of actual men and events no matter of what era" ( BB, p. 62). He
prefers history and biography, which appeal to him because they treat of realities. Yet the narrator
had earlier given his considerate version of historical writing, emphasizing the selective nature of
such stories. We can assume that Vere accepts these selective versions as factual accounts and that
from them he both forms and fortifies his own convictions. History solidifies social opinion just as
personal opinion selectively supports history. But Vere does not see the symbiotic nature of this
process. Instead he projects his subjective views outward into objective history. Similarly, when the
narrator claims to oppose revolution, not for personal but for social and political reasons, it is
unclear whether this is an unbiased view.
Vere's reliance upon books as reflections of actual experience also takes him further away from
emotional qualities within himself and others. He is "lacking in the companionable quality" ( BB, p.
63). It is in his reading that he finds the confirmation for his convictions that he had vainly sought in
social converse. It is thus suggested that he had perhaps tried to relate to others and, failing to do so,
had turned instead to what he took to be the dependability of books, which he could control by his
choices and interpretations of them. And it is this mental distance from experience which
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also increases the distance between himself and his men. It is his failure to use a "jocosely
6
familiar" discourse with them that makes real communication impossible ( BB, p. 63).
Vere is not reintroduced directly into the story until Chapter 18, leaving a gap in his activities from
Chapter 7 on. The narrator explains omissions by stating: "Nothing especially germane to the story
occurred until the events now about to be narrated" ( BB, p. 90). But again questions are raised in
our minds. Were the events that were omitted possibly relevant to our understanding? And are the
events which are included chosen because of the narrator's own point of view rather than their
relevancy? Is our view of things being shaped as if it were the only view, when in reality there are
other possibilities? Vere's acts again take place within the narrator's considerate view of history, for
before telling us about Vere, he tells about the anxieties of war. The Bellipotent, now separated from
the fleet, gave unsuccessful chase to an enemy ship. Thus, just as Vere is about to be faced with the
confrontation between Billy and Claggart, he is in a disturbed state of mind: he was "doubtless
somewhat chafed at the failure of the pursuit" ( BB, p. 91). Therefore, according to the narrator's
version, the Captain's vulnerable military position might have influenced his reaction to the
shipboard conflict. Hence, his later claims about the demands of the law may not be neutral.
In his agitated state of mind and with his inhibited feelings, Vere chooses the wrong form of
discourse, which ultimately brings the crisis to the breaking point. In confronting Claggart, who is a
master of the underlying subtleties playing among men, Vere employs his directness and thus
provokes Claggart's charge against Billy. In fact, so upset is Vere by Claggart's insinuations that he
switches his emphasis from Billy's innocence or guilt to Claggart's truthfulness or duplicity. Instead
of insisting that Claggart produce evidence incriminating Billy, he summons Billy to clarify
Claggart's accusations. But in attempting to help Billy refute Claggart's charges, the Captain
provokes his violence by accentuating his weakness: "Speak, man! . . . Speak! Defend yourself" (
BB, p. 98)! Perceiving Billy's stutter, he further incapacitates him by adopting a soothing tone which
results in Billy's murderous blow to Claggart. It is Vere's inhibited feeling as well as his tendency to
protect
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himself against uncertainty that lead to the directness which provokes Billy's tragic fate.
Thus the character of Captain Vere emphasizes welldefined features of a legalistic mentality. He
tends to perceive situations within the context of his authoritarian role and to use his authority to
reinforce his perceptions. He thinks he is acting outside particular circumstances, when in reality he
is influenced by them. He betrays discomfort with relationships based upon feeling and instead
relates to others in terms of the shipboard hierarchy. He masks personal inclinations behind the
necessity of his authoritative role. He customarily views the world in terms of absolutes which he
cannot reconcile. Thus Billy is seen as good while Claggart is portrayed as evil. Unable to unite the
two oppositional forces, he collapses them by making them mutually destructive. Each exists for the
sake of the other and each must ultimately negate its opposite. Vere's legalistic mentality thereby
results in reinforcing the power that he represents while at the same time denying that he has a
personal interest in doing so. Thus he appears to be serving an abstract ideal, while in reality he is
subjectively reinforcing his specific position within a well defined power structure.
Vere's behavior following Billy's crime and at his trial reveals the process of legal reasoning as
flawed. For not only does Vere fail to obey correctly the measured forms of the law, but the legal
system itself is shown to be profoundly defective. As has been observed by many critics, Vere's
initial error is his prejudgment of the case as evidenced in his exclamation: "Struck dead by an angel
of God! Yet the angel must hang" ( BB, p. 101)! This statement embodies both Vere's recognition of
Billy's moral innocence and his predetermined conviction of his legal guilt. Like Lemuel Shaw, who
presided as judge in the famous Webster murder trial in 1850, despite his personal feelings for the
defendant Vere utters a prejudicial statement which possibly influences the outcome of the trial. 7
Vere's odd behavior is immediately noted by the surgeon whom he summons to view the slain
Claggart. The surgeon is surprised at the Captain's unusually excited manner and disturbed by his
obsession with secrecy.
The surgeon's initial observations have provided much of the evidence for criticism of Vere's
handling of the case. Hayford and
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Sealts have shown that the surgeon's doubts were part of Melville's late additions ( BB, p.10).
The whole question of insanity as it had been discussed in relationship to Claggart is now
applicable to Vere as well. It also echoes Shaw once again, because he had earlier been
involved in attempting to define the legal meaning of insanity. Melville's indirect use of Shaw
at this point may throw an ironic light on Vere's legal procedure. In the Rogers case, in
February, 1844, Shaw had been careful to embrace two specific points in defining criminal
insanity. An individual had to know right from wrong and to exercise his will and
understanding. He had to be a free agent in order to be able to bear responsibility for his
criminal action. In addition, he had to have exhibited criminal intent. A lack of control or
motivation undermined the claims of reason and thus constituted aspects of insanity. 8
According to Shaw's reasoning in the Rogers case, Billy could possibly be viewed as insane
since he appeared to act without knowledge of what he was doing and with no preconceived
intent. What he displayed was close to Shaw's idea of an irresistible impulse. It is Claggart
who exhibits premeditated behavior. Thus Vere could have used a different legal charge for
bringing Billy to trial as indicated by the substance of Shaw's earlier ruling. Instead, Melville
seems to have adapted Shaw's own questionable behavior in the Webster case as a model for
Vere's, thereby emphasizing the way in which law can be manipulated. What appears
inevitable because it is the law is really a matter of expedient choice. Shaw's prior legal rulings
could have been used to exonerate but instead Shaw's own questionable judgment is used to
condemn. Shaw also drew upon the testimony of expert witnesses to define insanity, a concept
that is treated skeptically within Billy Budd.
Further evidence has accumulated that raises questions as to Vere's errors in legal procedure. C. B.
Ives in his essay "Billy Budd and the Articles of War," cites particular mistakes Vere made. Vere
appealed to the Mutiny Act, which was not relevant to the Navy. The Article under which Billy was
charged stated his offense was punishable by death but did not require it. The death sentence was
required only by a Court Martial, not a summary court, as was held by the Captain. The Captain was
to call such a court only in the context of the fear of a imminent mutiny. Such a fear, as we know
from the text of Billy Budd, existed only possibly in the mind
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of the Captain and retrospectively in the memory and imagination of the narrator, not directly
in the mood of the sailors. In fact the rumble of mass unrest exists in response to the court's
sentence, not as a motivating factor in that sentence. The Captain could be lenient if he so
chose. He knew he had broad powers but he did not disclose this to the court. Vere also
hastened to convene the court although his officers did not feel the same urgency. Although
the Articles called for a public trial, Vere emphasized secrecy and held the court below deck
within his closed cabin. Vere characterized his officers as immature in order to validate his
manipulation of them, but there is no evidence for their immaturity. Vere disregarded his
9
officers, common sense, and his feelings.
Richard Weisberg has offered additional substantiation of Vere's violations of law. In his article
"How Judges Speak," he claims that Vere's errors were intentional and that Melville meant for the
reader to recognize this. Therefore, if one accepts Weisberg's argument, Vere was not facing a
situation in which positive law negated natural justice. Instead, the Captain posed a dilemma that
did not really exist in order to impose the result that he wanted subjectively but that the law did not
necessarily require. Among the charges made against Vere the following are central: only for trials
concerning mutiny might sentencing and execution occur without review; Vere did not use the
requisite number of judges for the court (five to thirteen) but instead used three, one of whom was
not a naval officer; Vere played multiple roles at the trial, acting as sole witness, lawyer, and judge.
Weisberg also draws attention to Vere's behavior at the trial, emphasizing the captain's physical
elevation over the court as well as his superior expertise and rhetorical powers. 10
In his book The Failure of the Word, Weisberg attributes Vere's motivation at Billy's trial to his
desire to achieve subjective ends through seemingly objective means. This critic claims that Vere
envied Billy"s heroism, which he compared to Nelson's, and that he sought to destroy what he
himself could not personally possess. He also emphasizes Vere's use of his power and specialized
discourse to manipulate his audience by considerately providing it with a story it needed to hear. 11
Recently Weisberg's position has been challenged by Brook Thomas in his book, Cross
Examinations of Law and Literature.
147
Thomas charges that although Weisberg notes Vere's particular errors in not adhering to the
demands of the law, Melville is actually more interested in what is wrong with the system of
law as a whole rather than with the failure to implement it correctly. Thomas bases his
argument on the concept that although manipulators of the law, like Vere, appear to have no
choice in administering the letter of the law, in fact there are choices which exist among
alternative possibilities. Therefore, in making one choice rather than another and in seeking to
implement that choice as if it were inevitable, the authority figure is actually subjectively using
what appears to be an objective system. Thomas claims that judges cite strict adherence to law
to reassure the public and themselves that a case is decided by law rather than social and
political pressure. Particularly in times of unrest, judges appeal to the letter of the law, but
this may be a response to political pressure rather than a transcending of politics. Therefore,
the logic of the law is often political and the rational forms Vere claims to be employing may
themselves be irrational. 12
At Billy's trial Vere's measured forms are expressed through his rhetoric of power. From beginning
to end, his discourse is designed to bring about and legitimize the verdict he has predetermined. He
starts by directing the court to consider only the striker's deed and not his motivation. But unlike
Weisberg's and Thomas' contention that Vere's story is designed to tell the audience what it wants or
needs to hear, Vere's initial pronouncements seem to produce the opposite effect. Even Billy, not the
most astute of legal thinkers, is uneasy at Vere's statement. It causes him,
to turn a wistful interrogative look toward the speaker, a look in its dumb expressiveness
not unlike that which a dog of generous breed might turn upon his master, seeking in his
face some elucidation. . . . Nor was the same utterance without marked effect upon the
three officers, more especially the soldier. Couched in it seemed to them a meaning
unanticipated, involving a prejudgment on the speaker's part. It served to augment a
mental disturbance previously evident enough ( BB, pp. 1078).
The marine soldier, like the surgeon earlier in the narrative, is uneasy about the irregularity of the
legal proceedings. It is not that the measured forms convince but that they empower. Both the
surgeon and the marine are silenced not because they believe in the legitimacy of the Captain's
procedure but because they are
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afraid to reply. It is their fear of contravening Vere's authority and possibly ending up like
Billy that silences them, just as the mass of the men reluctantly acquiesce after Billy's hanging.
Vere's speech to the court is itself preceded by silence. Apparently in one of his "absent fits," Vere is
gazing out of a porthole "upon the monotonous blank of the twilight sea" ( BB, p. 109). Here his
mind again acts like a dike, protecting itself against the onrush of novel opinion which soon begins
to emerge from his audience. The silence of the court is interrupted by sounds of "brief
consultations, in low earnest tones," and this serves to arouse and energize the Captain ( BB, p. 109).
Once again he exercises his legalistic tendencies as he subdues his instincts to his resolute mind.
In addition to his manipulation of the law, Vere's dominance is based upon his rhetoric of power,
which reflects his attention to content rather than form. By a "rhetoric of power" I mean the use of
discourse to force, compel, or magnetize, and in this Vere bears a resemblance to Claggart and
perhaps to Melville in earlier stages of his career. Vere's rhetorical approach preys upon the
insecurities of his officers, as his speech is designed to compel their assent to his wishes. His first
appeal is to their moral scruples, which seem to conflict with legal obligation. He next overcomes
their natural instincts, which speak against the rigor of the law. During his argument Vere pauses,
"earnestly studying" his officers presumably because they may have betrayed some uneasiness ( BB,
p. 111). He continues by stressing the obligation to the imperial code rather than private conscience
(BB, p. 111). Again observing his audience's anxiety, he switches his tone and emphasizes specific
demands of the law, which are not completely correct. The marine senses this: "But surely Budd
proposed neither mutiny nor homicide" ( BB, p. 111). And later the sailing master suggests another
possibility: "Can we not convict and yet mitigate the penalty" ( BB, p. 112)? All of Vere's efforts are
directed towards manipulating his audience to accept a story they would otherwise reject.
Furthermore, his discourse makes conflicts between law and morality appear inevitable.
Vere's final stage of argument stresses the force that solidifies the power he represents. He
strategically introduces the fear of mutiny and the social distinctions among the men: "You know
what
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ailors are. Will they not revert to the recent outbreak at the Nore? Ay" ( BB, p. 112). This was
the narrator's method when he earlier created a considerate version of history to substantiate
his views. So, too, does Vere set the case of Billy Budd within a considerate version of events.
Ultimately it is by appealing to the fears of the sea officers that Vere is able to use the legal
system to victimize the morally innocent sailor.
The system of law partially derives its strength from two simultaneous but contradictory
perceptions. On the one hand, the law must be perceived as the guardian and trustee of the rights of
all men. From this perspective the law is uniformly accepted as not only necessary but good. 13 On
the other hand, the law creates the impression that an increase in some rights occurs only with a
corresponding decrease in other rights. Thus, at his unsuccessful confirmation hearing, on his
nomination to the United States Supreme Court, Robert Bork could claim in defense of his views
that the increase in civil rights gained by minorities who could eat at previously allwhite lunch
counters could be accomplished only by decreasing the right of restaurant owners to decide whom
they wished to serve. The rights of one group inevitably would conflict with a challenge to those
rights from another group. From this perspective the law is not uniformly accepted nor is it regarded
as inherently good. Instead it is seen as protecting the dominant power at the expense of those
whose rights are not included within the law's protective sphere. The system of law as a whole tries
to balance these two polarities, always emphasizing the overall progress of the law and always
maintaining its status quo bias.
The law seeks to conceal that the opposite possibility may also be true. By increasing the rights of
one group, the rights of the opposing group may in fact be enhanced rather than diminished. Thus
the general economic wellbeing of the South may have actually benefited from integration. A
similar phenomenon seems to be taking place aboard the Bellipotent. Vere makes each of the
officers fear that his privileged position will be undermined if Billy is not convicted. He sets men's
interests against one another rather than allow them to see what causes they share. Each man's fear
for himself keeps the structure of the hierarchy in place. Even Vere himself is subject to this force,
which is manifested through him.
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The question of Melville's point of view about Vere's action has been a persistent source of
debate. Most recently, Thomas, despite a provocative exploration of Melville as a critic of the
legal system, seems tentative in evaluating Melville's position in relationship to this critique. In
his article "The Legal Fictions of Herman Melville and Lemuel Shaw," he concludes that
while "the story undercuts its apparently authoritative point of view," Melville offers only
silence in opposition. In CrossExaminations, Thomas criticizes Melville for exposing
authoritarian order but offering no alternative to it. He seems to be suggesting a subversive
reading of Billy Budd which would undermine Vere. On the other hand, he does not see
Melville as supporting forces of revolution, but as unable to imagine alternatives to the present
forms of society that his texts suggest should exist. In this he is close to the view of Michael
Rogin, with whom he takes issue. 14
I contend that although the structure of Billy Budd is highly formalistic, the novel is not removed
from social and political experience. Its radical commentary is a response to the ascendancy of legal
formalism itself. Formal features of the novel contain and contradict aspects of its legalistic plot. By
its insistence on its selfconscious fashioning, it contradicts the seemingly absolute form of the law.
The result may be a more compelling response to the historical world than a particular authorial
viewpoint could provide. The creation of Billy Budd may have allowed Melville to triumph over the
limitations of form he had perceived in both literature and law. Thus the formalism of the work may
not bless the conservative plot elements but may rather undermine them.
The form of the narrative is generated by the memory of the narrator. Several features of his
narration contradict the closed form of legal judgment which he tells about. The story is a
retrospective reconstruction of hypothetical events which are presented in terms of historical fact.
Yet it has been shown by Stanton Garner in his essay, "Fraud as Fact in Herman Melville Billy
Budd," that much of the historical material is incorrect, and Garner argues that it is manipulated by
Melville for specific purposes. 15 In addition to the points Garner raises, what seem significant to
the narrator are those historical elements which reflect on his own situation as a late nineteenth
century man. His fears of societal upheaval perhaps influence his emphasis upon mutiny and
revolution. 16 The
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decline in spiritual authority which he bemoans perhaps leads him to infuse religious qualities
into law, depicting law as an ideal authority above and beyond us to which we owe
unquestioning obedience. Thus history becomes relevant as it affects the present, not simply
because it is the past. The paramount aspect of historical knowledge is not the certainty with
which it documents past events but the way in which it allows the present to receive and
interpret the past. The past can exist only in relative terms, although the form in which it is
transmitted appears absolute.
Although the narrator accentuates the factual validity of his story, his narrative method undermines
his claims to certainty. We never really know the source of his knowledge of events and, according
to his account, the only human record attesting to "what manner of men respectively were John
Claggart and Billy Budd" is an outdated and forgotten news account which was an authorized naval
publication ( BB, p. 131). Thus he states: "It was doubtless for the most part written in good faith,
though the medium, partly rumor, through which the facts must have reached the writer served to
deflect and in part falsify them" ( BB, p. 130). He then provides the clipping which contradicts his
narrative. Yet his own reconstruction of the story bears some similarity to the derivation of the news
account. Doubtless it, too, was written in good faith, with some reliance upon rumor. The narrator's
considerate version of historical writing selfadmittedly also entails possible deflection and even
falsification if necessary.
Yet the narrator's method also differs in significant ways from the authorized news account. On the
one hand, he seems extremely certain of his knowledge. His phrasing seems definite. He often
begins with "Now this" or "Yes," creating the impression that the events he narrates flow from one
another out of some inflexible logic. On the other hand he is frequently equivocal, retreating behind
such statements as "however it may have been," "probably," "perhaps," and other qualifiers. He
admits this indefiniteness is boggy ground to build on, and at the same time he continues to build
upon it. His claims to certainty are in tension with the uncertainty of his style. This dichotomy is
unlike legal methodology, which disguises the uncertainty of its claims within the apparent
authoritativeness of its form. 17
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It seems all the more striking how much the narrator does not know. For a man who claims to
be telling the inside story he lacks crucial information. It seems impossible that he would
know about the central action of the legal plot the crime of Billy Budd against Claggart
which took place within the secret confines of the Captain's closed cabin: "Shut the door
there, sentry. . . . Stand without, and let nobody come in" ( BB, p. 98). Presumably Vere was
the only witness to the murder. How then could the narrator know what actually took place
since, as we are later told, the three principal figures are all dead? It seems that he must have
conjectured the central action based upon his own desires and fears which emerge out of a
later specific historical context. It is only by inserting his imagination into a given set of
circumstances that he creates a version of events that seems acceptable to him. His recreation
of the crime is tentatively phrased, punctuated with "it may be" ( BB, p. 98). The narrator
refers to the murder as a "scene," and throughout the text events are often referred to in
terms of a stage play, as if history were a record of the change of appearances rather than the
documentation of established events. Unlike the form of the law, which seems to exclude
feeling and imagination from the full story, the narrative form of Billy Budd exists primarily
through the creative powers of the author. Since we can never know precisely what definitely
happened, there is a necessary place for imagination in creating an account of what may have
been and what yet might be. Is and ought are not necessarily the same thing, as the law insists.
Another startling gap in the narrator's knowledge concerns his report of the secret conversation
between Vere and Billy that follows the guilty verdict pronounced by the court. Vere's arguments at
the trial, while designed to force the officers to render his predetermined outcome, also represent
features of late nineteenthcentury legal thinking, which might have weighed heavily upon the
narrator's mind. Vere's highly formalistic view of the law encapsulates the increasing legal
formalism following the Civil War. More and more, legal decisions of the postbellum period served
to solidify earlier tendencies of the instrumental period of legal growth, wherein the developing
market economy was given additional impetus. Towards the late nineteenthcentury, the period from
which the narrator speaks, the law increasingly augmented corpo
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rate power at the expense of a growing number of urban industrial laborers. Vere's attempts
to maintain his power and authority by subduing potential mass unrest indirectly reflect the
underlying discontent within an unstable industrial society of which the narrator is a part.
Furthermore, Vere's desire to divorce intent from act in the case against Billy parallels the
thinking of Justice Oliver Wendell Holmes, Jr., who was articulating a similar disjunction
between morality and law at the end of the nineteenthcentury. 18
Thus the narrator's version of Vere's arguments at Billy's trial reflects developments of American
legal history, and the supposedly secret scene between Vere and Billy may represent the narrator's
attempt to explain imaginatively or rationalize his view of the necessity of the law. He states:
"Beyond the communication of the sentence, what took place at this interview was never known" (
BB, p. 115). He is forced to make conjectures. The narrator's hypothetical scene consists of
everything omitted from the trial. Vere the military disciplinarian becomes Vere the father. Vere and
Billy are elevated beyond the human realm and are seen as extraordinary, two of "great Nature's
nobler order" ( BB, p. 115). They are raised to the stature of biblical figures, as Billy becomes Isaac
and Vere becomes Abraham, obedient to "the exacting behest" ( BB, p. 115). Human feeling and
mitigating compassion, which were excluded from legal argumentation, are reintroduced as Billy is
imagined as forgiving and Vere is portrayed as suffering. What better way to render the fate of Billy
bearable than by changing the terms of his conviction? The manipulation of human sensibility
provides a context in which the harshness of judgment can be softened.
Literary form further serves to contradict legal form by its blurring of boundaries. While law
depends upon boundaries and seeks to define specific spheres in which predetermined rules apply in
exact ways, the fictional form of Billy Budd strives to cross or even erase boundaries by which
readers of novels usually establish their bearings. The form of the story is multiple, employing
allegory, symbolism, and history. It has been read for romance and realism, tragedy and irony,
drama and exposition as well as prose and poetry. The narrator draws allusions from many spheres,
including myth, religion, philosophy, literature and history. Characters seem to be presented
allegorically; yet we are prevented from accepting them as types of the absolute. Clues as to
motivation are removed
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and frequently the same term is applied to widely different characters.
The effect of such elastic borders is to collapse our prior methods of categorizing knowledge.
Instead of distinctly separating supposedly disparate qualities, we are forced to begin to regard them
as gradations of one another, reflecting the rainbow metaphor within the text. The blurring of
explicit categories threatens the definitions imposed by law and calls into question the means by
which legal decisions are reached within each boundary. 'Thus the legal category in which Billy is
tried is mutiny, while it could have been insanity. Yet the question of insanity is raised only in
relation to Claggart and Vere, who represent the law. Thus the reader is left to confront the problem
of how the categories of legal definition help the manipulators of the law uphold their power against
those who might potentially pose a threat to it.
The expansiveness of the literary form is also emphasized by the alternative endings added on to the
main body of the narrative. The quasiscientific account, the faulty news clipping, and the ballad
call the narrative into question and also accentuate the "ragged edges" of storytelling. 19 The
authorized news account represents the only official version of events, and as such it stands in
contrast to novel writing. As Richard Brodhead has discussed in his book, The School of
Hawthorne, the late nineteenthcentury witnessed another alteration in tradition formation with the
proliferation of newspapers and popular magazines. This deluge of printed matter, a forerunner of
our own mediasaturated age, appealed to the spectator, the passive person who wanted to absorb
information without effort. 20 The common sailors aboard the Bellipotent are such passive recipients
of prepackaged material. That is one of the reasons Vere is able to manipulate them through
discourse. He has more facility with how the language of power works. The men "whose reading
was mainly confined to the journals" do not understand him and are conditioned to passivity
partially through their form of reading ( BB, p. 63).
Furthermore, by the late nineteenthcentury, newspapers were appearing in something resembling
their current form, bounded columns interspersed with an increasing number of pictures. Thus
information appeared disconnected, with parts artificially separated from one another. Each day's
edition would be thrown
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away, thereby severing one day's events from those preceding and those following it. Increasing
numbers of readers consumed information in a form that presented events as disconnected,
temporary and created for the purpose of being discarded. Yet although they seemed more
connected by their common reading of current events, people were actually becoming more
isolated from one another in their crowded lives within the lonely city. 21 Similarly the mass of
men aboard the Bellipotent exhibit passivity and acquiescence to the lawandorder of Vere's
measured forms and lack the skills to see the complex contradictions in his manipulation of
these forms. The pressure of Melville's text on the reader has the effect of counteracting
passive reading. Presumably, a byproduct of active reading and interpretation might
potentially be action.
In Melville's earlier major fiction he had argued for the ability of the literary imagination to
transform experience through its shaping power. Ishmael had been such an author. But in his
creativity he also exhibited qualities which mirrored the aggressiveness of Ahab. Although he
sought to offer an alternative to Ahab's destructiveness, his imaginative reconstruction of experience
exhibited the same acquisitiveness as his Captain's. He dazzled his audience with the form of his
discourse just as Ahab had compelled the crew with his. Ishmael almost succumbed to Ahab's power
and only saved himself through human fellowship.
It was during the composition of MobyDick that Melville fell under the power of Hawthorne.
Melville writes of the literary impact of Hawthorne upon him in his essay, "Hawthorne and His
Mosses," wherein he stresses the hold Hawthorne had over him, which Melville seems to have
cultivated for the development of his own creative power: "A man of a deep and noble nature has
seized me in this seclusion. . . . His wild, witch voice rings through me. . . . The soft ravishments of
the man spun me round about in a web of dreams." He goes on to talk about the influence of
Hawthorne's "spell," his possession of a "mystical depth of meaning." The writings of Hawthorne
that he cites speak of the power of wizardry and blackness. Hawthorne wields his terrific thoughts
and may leave you "witched by his sunlight, transported by the bright gildings of the skies he
builds over you." The emphasis is on the active ability of Hawthorne to manipulate powerful forces.
Melville speaks of
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himself as "fixed and fascinated" and wants to acquire these powers for himself. He envisions
a kind of federation of men of genius to which he hopes he might belong, men who are
connected by "certain wondrous, occult properties," hidden but potentially capable of
springing forth. In Melville's view at this time, the artist potentially possessed magical
qualities, and through his creations he could cast a spell over his readers and bind them to his
vision. 22
Yet in the interval between his last two fictions, The ConfidenceMan ( 1857) and Billy Budd ( 1891),
Melville was part of a society in which outward forms, especially legal forms, increasingly came to
dominate the thoughts and actions of men. It is possible that the compelling aspect of the dominant
discourses of power influenced him when he evolved the form of Billy Budd. One of the dominant
themes of the work is the discourse of authority and how to free literature from it. As has been
frequently remarked, the "measured forms" of Captain Vere exist in tension with the "ragged edges"
of the narrator. Vere's mode of discourse relies on the definitiveness and closed nature of legal rules
and decisionmaking, while the narrator's form of discourse is incomplete, contradictory, and open,
revealing the ultimate mystery of some aspects of human experience.
There is, however, a link between "measured forms" and "ragged edges" because of the connection
between authority and literature. It is this mold that Melville is attempting to recast within the form
of Billy Budd. Neither art in its purely natural form nor authority in its highly developed state is
acceptable. Billy represents the alliance of art and nature. He is illiterate but he sings his own songs,
to which anyone can instinctively respond. In this he perhaps represents an earlier ideal of Melville's
in which word and deed might be one. But now this artistic form is limited because while it includes
and appeals to feelings, it excludes the complexities of the evils of man's nature. That is why Billy is
so poorly equipped to form a discourse to challenge the claims of Claggart and to provide a defense
to exonerate himself before his Captain. The limitation of his natural discourse also prevents him
from foreseeing and perhaps preventing duplicity and its consequences. He does not reveal the
secretive and potentially harmful solicitations made to him because his mode of expression allows
no place for such a conception. Thus the naturalness of Billy's discourse is
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insufficient to combat the imperfections of human behavior. But Billy's discourse, while free
of authority, does have the power to compel, because all men respond to his song, although no
one comes to his aid. The purely magical quality of art, reechoed in the final ballad, cannot
stand against more powerful authoritative discourses.
Just as Billy embodies the discourse of nature in its pure state, so Claggart embodies the discourse
of authority in its most virulent form. While Billy's innocence precluded an awareness of evil, so
Claggart's evil eliminates the possibility of innocence. Neither mode of discourse deprived of its
opposite can survive, although both are compelling. Through the figure of Claggart, Melville
attempts to purge the compulsive power of discourse and thereby purify the form of his novel. The
description of Claggart is mixed, emphasizing a diminished classicism that also may be outdated.
Claggart has almost regular features, except for his chin, and appears something like "a Greek
medallion" ( BB, p. 64). He is attractive and intelligent, but his position as masteratarms does not
quite fit his attributes. He is associated with art by the color of his skin, which resembles "time
tinted marbles of old" ( BB, p. 64). In this he differs from the "smooth white marble in the polished
block not yet removed from the marbledealer's yard" ( BB, p. 128). This image of creativity is the
last image that remains after Billy's hanging. Claggart's form of art has perhaps been distorted over
time, in contrast to the potential of art which is being carved out within the novel Billy Budd.
In the confrontation between Billy and Claggart which is witnessed by Vere, Claggart's chief power
is his ability to compel the young sailor and dominate his behavior. He had already appeared as a
man of indirection and subtle tactics. Within Vere's cabin Claggart takes on his central role, which
is like that of "an asylum physician" who has inside knowledge of men ( BB, p. 98). And suddenly
Claggart appears to resemble no one more than the Hawthorne sinner, men like Chillingworth, who
tormented Dimmesdale, or Maule, who hypnotized Alice, or Westervelt, who controlled Priscilla.
For Hawthorne the great sin was not only the violation of the human heart but the laceration of that
heart with the secret knowledge extracted from it. Claggart becomes a physician engaged in prying
out the secret of his patient's heart in order
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to destroy him. He "deliberately advanced within short range of Billy, and, mesmerically
looking him in the eye, briefly recapitulated the accusation" ( BB, p. 98). It is Claggart's
"mesmeristic glance" searing into his victim that causes Billy to stand like "one impaled and
gagged," and it is perhaps "the horror of the accuser's eyes" as much as the Captain's
prodding that causes Billy's inability to defend himself ( BB, p. 98). Billy becomes
"transfixed" as Melville had been "fixed and fascinated" by Hawthorne so many years before.
Perhaps in dedicating his novel to Jack Chase, "that great heart," and in the fate of Claggart,
Melville is reimagining a different Hawthorne to once again empower him to rind a greater form for
his conception, as he had earlier done while composing MobyDick. Throughout his life Melville
had recalled Hawthorne, but particularly in Clarel. The Hawthorne present to him during the
writing of Billy Budd seems to be a Hawthorne now capable of choosing heart over head. Thus
Billy, that great heart, strikes a deadly blow to Claggart's forehead, thereby subduing head to heart.
What remains after this violent clash is a usable form free of evil or compulsion. As Vere and Billy
kneel to raise Claggart, he is transformed: "The spare form flexibly acquiesced, but inertly. It was
like handling a dead snake" ( BB, p. 99). Purged of his evil qualities of mesmerism and legal
compulsion, Claggart's form could almost serve as a description of the form of Billy Budd: spare,
flexibly acquiescent to interpretation, but not a force of activation. The form moves only as it is
acted upon by others, as they take it up or put it down.
Vere's use of the discourse of power is like Claggart's, but Vere is more subtle, as befits someone
more important in the hierarchy of authority. The greater the necessity for the imposition of
authority and the greater the threat to the dominant power structure, the more calculated must be the
discourse of power. If it is too extreme it will provoke an inordinately violent reaction. Hence
Claggart's charge results in Billy's murderous blow, and the private conflict reaches its most extreme
state. Vere's handling of the wider societal conflict aboard his ship is muted and protected. He must
convince in such a way that most men will attest to the rightness and necessity of his decision,
despite possible legal errors. His use of "measured forms" after Billy's execution serves this func
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tion: "'With mankind,' he would say, 'forms, measured forms, are everything, and that is the import
couched in the story of Orpheus with his lyre spellbinding the wild denizens of the wood'" ( BB, p.
128). Vere draws his analogy from art, which, like law, has the power to compel. It is this force
which law and literature share that provides boundaries by which men can be contained.
Therefore, if Melville could create an artistic form devoid of the spellbinding quality, he could
reconstitute fiction as a discourse of value. In The ConfidenceMan, his last published novel prior to
Billy Budd, he had revealed all discourse as subversive, reducing it to a mere play of surfaces.
Verbal structures could ultimately only undermine themselves, and the Confidence Man becomes he
who can most adroitly manipulate discourse. Proof of success is that the Confidence Man compels
assent. He makes others trust and thereby affirm his discourse. His force depends upon his power to
exert influence over others. In The ConfidenceMan Melville reveals how the discourse of power
works. In Billy Budd he attempts to prevent it from working by interrupting it, by selfconsciously
calling attention to the "space between," that space where decisionmaking habitually takes place in
predetermined ways. By calling attention to that space, Melville tries to undermine the inevitability
of the discourse of power.
The explicit references to the "space between" occur in three particular contexts, all of which
emphasize the hazards of judgment and the extent to which judgment is determined by the ideology
of the status quo. The first use of the term refers to the attempt on the part of an individual to
determine the minute distinctions between sanity and insanity ( BB, p. 74). This is the space of
expert judgment. It is suggested that two types of knowledge can be drawn upon: the knowledge of
Coke and Blackstone and the knowledge of the human heart ( BB, p. 75). The second reference
occurs in relation to the court martial which takes place within Vere's cabin in the space between
Claggart's dead body and Billy's imprisoned one. This is the space of legal judgment with its
attendant errors, manipulations, and political motivations. The third and final reference relates to the
"space between the mainmast and foremast," a space of commonsense judgment, where the sailors
will be able to witness the execution of Billy Budd ( BB, p. 122). This is the space in which the
sentence will be carried out, in which the discourse of
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power will be actualized through the execution of the Handsome Sailor. This is also the space
where the sentence will be internalized as the men watch what happens, just as the text is
internalized as we read it. The men become the pure vehicles for Vere's content, just as the
form of books had served Vere as conveyors of content. So too does the sentence of the law
become a tool of power, as its form serves only to transmit predetermined content.
All of these spaces exist as scenes of possibility. Within the novel the spaces are written in by the
narrator's application of legalistic judgment, but that is not necessarily the only available choice. By
calling attention to the "space between," Melville suggests the potential for alternative versions. The
narrator's judgments not only prove insufficient but impede the prospects for alternatives. Experts
cannot decide the exact distinction between sanity and insanity, but the suggested mental instability
of Claggart and Vere does not remove them from their positions of power. Legal judgment at the
Court Martial may be based upon error, but the predetermined conviction is supported. The sailors
raise the first sounds of mutinous feeling as they witness Billy's hanging. Yet they continue to
acquiesce within a system which has conditioned their passivity.
Such predetermined use of the space between is not inevitable. Unlike the fixed boundaries of the
law, "the space between" provides the novel with the possibility of an expansive form, an "elastic
circumference" generated by the space between the plot and the form, the narrator and the author,
and the author and the reader. The interrelationship among all these elements of the text and the
spaces left within them allow for alternative possibilities which can be inserted by future readers of
the novel. It is left to the reader to activate the text through interpretation rather than be acted upon
by it and be led to a predetermined judgment. The text does not require us to suspend judgment but
rather to focus our attention upon the process of judgment. Only thus can we alter the result of
judgment itself. In so doing the reader escapes the power of discourse exerted by Vere. As each
reader's interpretation will inevitably be made from different historical periods, no one
interpretation will contain an ultimate judgment nor will any be totally free of its particular
historical context. Thus Vere's judgment and his method of decisionmaking can never be entirely
justified by
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the form of the text. It is only continual reinterpretations of the text that can provide an
alternative to the absolute but ultimately arbitrary legal judgment which legitimizes the death
of Billy Budd. The flexibility of interpretation might not have prevented the execution of the
morally innocent sailor at a given historical moment, but it would have prevented our viewing
that judgment as inevitable, separate from and beyond our historical world and our human
actions.
The openness of the novel's form is increased by its composition and publication history. The work
of Hayford and Sealts has produced a finely detailed version of the evolution of the novel ( BB, pp.
112). The growth of the text seems to have originated from the story of Billy and then expanded
into the development of Claggart and finally to the increasingly complex role of Vere. The
moral/legal dilemma of Billy's case seems to have become the focus for a consideration of the
process of judging, which initially seemed welldefined and clear. Melville's change of emphasis
from judgment as result to judgment as process could reflect what he wanted to happen within the
reader's mind.
In addition, according to the evidence of Hayford and Sealts, Melville did not finish the manuscript,
although it appears that he meant to publish it, and that he left no directions nor made any external
references to the novel itself ( BB, p. 12). In MobyDick Ishmael referred to unfinished manuscripts
that might be found at his death and also expressed his desire to never complete anything. 23 He was
voicing an aesthetic consistent with that of the narrator of Billy Budd, who comments upon his own
method: "Truth uncompromisingly told will always have its ragged edges; hence the conclusion of
such a narration is apt to be less finished than an architectural finial" ( BB, p. 128). Such textual
openness is a selfconscious feature of Melville's narrative method. The ConfidenceMan had ended
on a tentative note, and Billy Budd literally does not actually ever end.
Paul Brodtkorb Jr., in his essay "The Definitive Billy Budd: 'But aren't it All Sham,'" suggests that
the unfinished nature of the work mars its unity and is perhaps responsible for the extremely
divergent views engendered by the text. He claims that the narrator is inconsistent and that this will
always affect our view of Vere. But many of Melville's narrators are inconsistent, especially the
narra
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tor of Pierre, who also makes us hesitate to judge the hero. Brodtkorb raises the question as to
whether the unfinished state of Melville's last novel prevents us from ever saying anything
definite about it: "There can only be one more reading of Billy Budd." He asks whether the
lack of closure is a means of escaping moral choices: "the story escapes advocating either
conservative or liberal moral choices, eludes liberal or conservative critical rhetoric and
retreats onto a twilit ground where few important human actions are rationally choosable." 24
I would suggest, however, that it is just this open quality, with its lack of authoritative guideposts,
that causes the reader to fill in gaps. If we give the text a conservative reading and view it, for
example, as an expression of Melville's "testament of acceptance," we are unhappy with our verdict.
If we offer a liberal reading and interpret the novel as a form of Melville's "testament of resistance,"
we must then seek ways to explain what is wrong with the verdict of the plot. In either case, the
reader must allow his intellect, feelings, and ethical awareness to become part of his process of
judgment, the very conjunction of qualities omitted from the legal plot of the novel. The formalistic
structure of the novel does not necessitate the suspension of judgment, but instead requires the
reader to activate the text through subjective qualities present within himself but suppressed by the
legal system. These are what Vere suppressed and the common sailors never realized. Brodtkorb
states that in an era of Hitler and Vietnam we need to take stands, not evade them. 25 But this was an
era in which the claims of law sanctioned moral atrocities. Melville's text forces us to see how the
legal system manipulates judgment rather than how it requires us to suspend judgment.
Furthermore, the unfinished condition of the text reveals numerous contradictions and errors that
are either intentional or unintentional. We will never know for sure. But the existence of
contradictions and errors within a work about legal discourse may itself be the central contradiction
of the novel. For how can the privileged status of legal reasoning remain unchallenged within a
work filled with features which undermine its claims to certainty and objectivity? The very
discrepancy between the definite end to Billy Budd and the open nature of the work in which his life
is
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closed undercuts the validity of the claims of legal reasoning as a mode of decisionmaking.
Although Melville left the work incomplete and provided no direction for its publication, the editors
believe Melville intended for the work to be published. Indeed the narrator is speaking to a
hypothetical listener at all times and at one point addresses him directly: "If the reader will keep me
company I shall be glad. At the least, we can promise ourselves that pleasure which is wickedly said
to be in sinning, for a literary sin the divergence will be" ( BB, p. 56). This is a curious and very
revealing passage in view of the history of Melville's career, and it suggests a marked change in
authorial attitude and expectations. In Pierre, the narrator expresses an almost tormented version of
the author/reader relationship:
Let not the shortsighted world for a moment imagine, that any vanity lurks in such
minds; only hired to appear on the stage, not voluntarily claiming the public attention;
their utmost liferedness and glow is but rouge, washed off in private with bitterest tears;
their laugh only rings because it is hollow, and the answering laugh is no laughter to
them. 26
In The ConfidenceMan, the digressive chapters on fiction all express the narrator's skeptical view
of his reader's reaction to unorthodox literary methods. 27 Melville had made earlier references to
writing books calculated to fail. 28 This was in a period dominated by the popularity of novels, but
of a much different kind than he was writing. There is evidence that Melville was aware of and
could have produced the sort of novels desired by his contemporary audience and that he understood
contemporary methods of literary advancement. However, he did not choose that course of artistic
development. 29
In the time between the 1850's and the later part of the century, Melville withdrew from well
trodden roads to literary success and instead attempted to discover his own way. And there are
indications that by the late nineteenthcentury a new space in the audience was beginning to emerge,
a space for the "antipopular" novel that Melville had earlier been creating. 30 By the time of his
composition of Billy Budd he could address the reader in an amicable tone, as if he and the reader
were on close personal terms. Now his narrative voice is confidential and trusting and suggests that
the
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reader will follow along with him and keep him company. He sounds almost like Whitman,
who had exclaimed, "And what I assume, you shall assume." 31 Not only are the narrator and
the reader a team, but they make promises to one another of shared pleasures. Most
surprising of all, these pleasures will come from literary divergence, the very source of
Melville's earlier problems in achieving popular success. Features of his work that he had
always implied would offend his reader now create the bond between them.
Thus, although many critics seem to bemoan the course of Melville's late career, noting a falling off
of energy and talent and a retreat to formalism as the responses of an author dismayed by a rejecting
public, the reverse may also be possible. While Melville's works may not have been calculated for
success, neither were they calculated for oblivion. His "reclusiveness" may have been his vantage
point for surveying his world. The highly formalistic structure of the world of the novel may act as a
means of clarifying our real world, and as such Billy Budd may be a realization of the fictional
theory put forth in The ConfidenceMan: fiction should "present another world, and yet one to
which we feel the tie." 32 There is also some indication that Melville was rereading his own works
while writing his final novel ( BB, p. 168). One of the authors he most recalls is himself, as if
bequeathing himself through his works to a future generation of readers, who in the space between
the writing and publication of the text may have come into being.
Because the author left a work to be not only read but recreated by a future generation, this final
novel occupies a special place in the Melville canon and one which further undermines the primacy
of legal reasoning. Billy Budd was published many years after Melville's death, and it escapes the
usual history of published works. 33 As such it enters the world unprecedented, without the usual
contemporary reviews and criticisms which inevitably impinge upon all later interpretation. This is
opposite to the process of legal reasoning, which establishes its validity by pointing to preexisting
documents. Furthermore, the novel enters not its own historical period but a different one. Its first
readers could interpret it only from their own vantage point, which is what the text of the novel
suggests. It is the narrator's late nineteenthcentury conception of events that shapes his
retrospective story, just as it is our late twen
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tiethcentury perspective that must shape our interpretation; and we must be aware of the
part we play in shaping the meaning as well as the course of events. Thus, appeals to the
timelessness, universality, and inevitability of the law are undercut by the lapse of time itself,
and the space left within the text can become the ground upon which we build our own version
of meaning.
Some critics, while aware of the similarities which law and literature share, have concluded that the
relationship is misunderstood. 34 They view legal matters as peripheral to literature and claim that
literature does not often engage the lawyer's professional knowledge. Such critics would argue that
literary criticism cannot solve the problems of legal interpretation, that any attempt to do so is
ideological, and always tends towards freer or more liberal readings. This view places law and
literature in different worlds. Law is the discourse of politics and action, while literature is the
discourse of aesthetics and contemplation. And hopefully, never the two shall meet.
In Billy Budd, Melville challenges this assumption. By using literary form to examine law, he has
brought the two spheres closer together. In so doing, he has infused the possibilities of literature into
the world of law. Literature is thereby transformed from an artifact of the beautiful into a vehicle for
change. By leading us to question the status quo, which law upholds, literature becomes highly
political and useful as it helps us to see the world anew.
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Notes
Chapter 1
1 Jay Leyda, ed., The Melville Log ( New York: Gordian Press, 1951), 2 vols. Leon Howard,
Herman Melville: A Biography ( Berkeley and Los Angeles: University of California Press,
1951).
2 Howard Bruce Franklin, The Victim as Criminal and Artist ( New York: Oxford University
Press, 1978). Michael Paul Rogin, Subversive Genealogy: The Politics and Art of Herman
Melville ( New York: Knopf, 1983). James Duban , Melville's Major Fiction: Politics,
Theology, and Imagination ( Dekalb: Northern Illinois University Press, 1983). Carolyn L.
Karcher, Shadow Over the Promised Land: Slavery, Race, and Violence in Melville's America (
Baton Rouge and London: Louisiana State University Press, 1980).
3 See especially: Donald E. Pease, "MobyDick and the Cold War," in The American
Renaissance Reconsidered: Selected Papers from the English Institute, 198283, ed. Walter
Benn Michaels and Donald E. Pease ( Baltimore and London: The Johns Hopkins University
Press, 1985), pp. 11355. James H. Kavanagh , "That Hive of Subtlety: 'Benito Cereno' and the
Liberal Hero," in Ideology and Classic American Literature, ed. Sacvan Bercovitch and Myra
Jehlen ( Cambridge: Cambridge University Press, 1986), pp. 35283.
4 Robert A. Ferguson, Law and Letters in American Culture ( Cambridge, Massachusetts:
Harvard University Press, 1984), pp. 333, 8795, 199206, 26672, 28890. Richard H.
Weisberg, The Failure of the Word: The Protagonist and Lawyer in Modern Fiction ( New
Haven and London: Yale University Press, 1984), pp. 13376. Brook Thomas, Cross
Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville ( Cambridge:
Cambridge University Press, 1987), pp. 20150. See also the following articles: Brook
Thomas , "Billy Budd and the Judgment of Silence," in Literature and Ideology, ed. Harry R.
Garvin ( Lewisburg, Pennsylvania: Bucknell University Press, 1982), pp. 5178. Brook
Thomas, "The Legal Fictions of Herman Melville and Lemuel Shaw," Critical Inquiry, 11
( September, 1984), pp. 2451.
5 Richard A. Posner, Law and Literature: A Misunderstood Relation ( Cambridge,
Massachusetts: Harvard University Press, 1988). See especially pp. 20968. For his reading of
Billy Budd see pp. 15566.
6 Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw ( Cambridge,
Massachusetts: Harvard University Press, 1957). Morton J.Horwitz
167
Horwitz, The Transformation of American Law, 17801860 ( Cambridge, Massachusetts:
Harvard University Press, 1977).
7 The following discussions have been especially useful to me: David Kairys, "Legal
Reasoning," in The Politics of Law: A Progressive Critique, ed. David Kairys ( New York:
Pantheon Books, 1982), pp. 1117. Elizabeth Mensch, "The History of Mainstream Legal
Thought", in The Politics of Law: A Progressive Critique, ed. David Kairys ( New York:
Pantheon Books, 1982), pp. 1839. Duncan Kennedy, "Legal Education as Training for
Hierarchy," in The Politics of Law: A Progressive Critique, ed. David Kairys ( New York:
Pantheon Books, 1982), pp. 4061. Peter Gabel and Jay M. Feinman, "Contract Law as
Ideology," in The Politics of Law: A Progressive Critique, ed. David Kairys ( New York:
Pantheon Books, 1982), pp. 17284. Robert W. Gordon , "Law and Ideology," Tikkun, 3
( January/February, 1988), pp. 1418, 8386.
8 Lawrence M. Friedman, A History of American Law ( New York: Simon and Schuster, Inc.,
1973).
9 For a similar view of deconstruction see: Gary Pellar, "Reason and the Mob: The Politics of
Representation," Tikkun, 2 ( July/August, 1987), pp. 2831, 9295.
10 For a discussion of this difficult problem see: Robert M. Cover, Justice Accused: Antislavery
and the Judicial Process ( New Haven and London: Yale University Press, 1975).
Chapter 2
1 Herman Melville, Typee: A Peep at Polynesian Life, ed. Harrison Hayford, Hershel Parker, and
G. Thomas Tanselle ( Evanston and Chicago: Northwestern University Press and The
Newberry Library, 1968). All citations are from this edition and will be referred to by page
numbers within the text.
2 Herman Melville, MobyDick; or, The Whale, ed. Harrison Hayford and Hershel Parker ( New
York: W.W. Norton, 1967), pp. 55960.
3 A suggestive reference to the dedication of Typee appears in the Northwestern Newberry
edition, "Historical Notes," p. 312. Evidence of possible late directions given by the author
appears among the Stedman papers at Columbia University. An udated note in Mrs. Melville's
hand indicates that there was some thought of omitting the dedication. If, late in his life,
Melville had been contemplating removing the dedication of his first book to Lemuel Shaw,
this may signify a change in his attitude towards the role his fatherinlaw had assumed in his
life. Since this change was considered while Melville was working on Billy Budd, and since
Shaw's views have been related to those of Captain Vere, perhaps the older Melville had
achieved an independence from Shaw which as a younger man had proved problematic for him.
168
4 Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw ( Cambridge: Harvard
University Press, 1957), p. 9.
5 Leon Howard, Herman Melville: A Biography ( Berkeley: University of California Press, 1951);
Jay Leyda, ed., The Meville Log ( New York: Gordian Press, 1951), 2 vols.
6 Michael Paul Rogin, Subversive Genealogy: The Politics and An of Herman Melville ( New
York: Alfred A. Knopf, 1983), pp. 4345.
7 Leon Howard, "Historical Note," Typee: A Peep at Polynesian Life, by Herman Melville
( Evanston and Chicago: Northwestern University Press and The Newberry Library, 1968), pp.
28990.
8 Brook Thomas, "The Legal Fictions of Herman Melville and Lemuel Shaw," Critical Inquiry,
11 ( September, 1984), pp. 34, 38.
9 Merrell R. Davis and William H. Gilman, ed., The Letters Herman Melville ( New Haven: Yale
University Press, 1960). All references to letters are from this edition and will be referred to by
date within the text.
10 Herman Melville, "Hawthorne and His Mosses" in MobyDick; or, The Whale, ed. Harrison
Hayford and Hershel Parker ( New York and London: W.W. Norton and Company, 1967), p.
542.
11 David Kairys, ed. The Politics of Law: A Progressive Critique ( New York: Pantheon Books,
1982), pp. 15. An alternative definition of legal reasoning can be found in Edward H. Levi An
Introduction to Legal Reasoning ( Chicago: University of Chicago Press, 1949), pp. 13, 74.
This view holds that the key feature of legal reasoning is the judge's perception of similarities
and differences in cases. Therefore, the reasoning process is more dialectic than static.
However, Levi does not explain how judges can objectively define similarities and differences
among cases.
12 Levy, p. 23.
13 Levy, pp. 16682.
14 Herman Melville, Omoo: A Narrative of Adventures in the South Seas, ed. Harrison Hayford
and Walter Blair ( New York: Hendricks House, Inc., 1969), pp. 34347.
15 Log, pp. 210, 22425.
16 Levy, pp. 16682, 7884.
17 Howard "Historical Note," p. 291. See also: John Samson, White Lies: Melville's Narratives of
Fact ( Ithaca and London: Cornell University Press, 1989). pp. 2256. This critic discusses
Melville's confrontation with his sources in order to expose the contradictions and biases
within them.
18 Milton R. Stern, The Fine Hammered of Herman Melville ( Urbana: University of Illinois
Press, 1957), pp. 2965. William Ellery Sedgwick,
169
Herman Melville: The Tragedy of Mind ( Cambridge: Harvard University Press, 1944), pp.
1935. For full discussion of criticism of Typee, see Leon Howard's "Historical Note," pp.
299301.
19 Morton J. Horwitz, The Transformation of American Law, 17801860 ( Cambridge: Harvard
University Press, 1977), pp. 1620.
20 For differing views about the narrator's jumping ship see: Lawrence Thompson , "Eden
Revisited," Melville's Quarrel with God ( Princeton: Princeton University Press, 1952), pp.
4255; rpt. in Critical Essays on Herman Melville's Typee, ed. Milton R. Stern ( Boston: G. K,
Hall & Co., 1982), p. 114. Milton R. Stern, "Typee," The Fine Hammered Steel of Herman
Melville ( Urbana: University of Illinois Press, 1957), pp. 2965; rpt. in Critical Essays on
Herman Melville's Typee, ed. Milton R. Stern ( Boston; G.K Hall & Co., 1982), pp. 12223.
Richard Ruland, "Melville and the Fortunate Fall: Typee as Eden," NineteenthCentury Fiction,
23:3 ( 1968), 31223; rpt. in Critical Essays on Herman Melville's Typee, ed. Milton R. Stern
( Boston: G.K. Hall & Co., 1982), p. 187. Thomas J. Scorza, "Tragedy in the State of Nature:
Merville's Typee," Interpretation 8, No. 1 ( January, 1979), pp. 10320; rpt. in Critical Essays
on Herman Melville's Typee, ed. Milton R. Stern ( Boston: G.K. Hall & Co., 1982), pp. 22029.
21 Lawrence M. Friedman, A History of American Law ( New York: Simon and Schuster, 1973),
pp. 24445.
22 Lawrence M. Friedman, "Notes Toward a History of American Justice," in American Law and
the Constitutional Order, Historical Perspectives, ed. Lawrence M. Friedman and Harry N.
Scheiber ( Cambridge: Harvard University Press, 1978), p. 19.
23 Friedman, "Notes Toward a History," p. 20.
24 William E. Nelson, "Emerging Notions of Modern Criminal Law in the Revolutionary Era; A
Historical Perspective," in American Law and the Constitutional Order, Historical
Perspectives, ed. Lawrence M. Friedman and Harry N. Scheiber ( Cambridge: Harvard
University Press, 1978), pp. 16566.
25 Nelson, p. 166.
26 Nelson, p. 172.
27 "Money," Encyclopedia Britannica, 1969 ed.
28 "Money," Encyclopedia Britannica, 1969 ed.
29 Friedman, A History of American Law, pp. 21516.
30 Richard Chase, Herman Melville: A Critical Study New York: MacMillan Co., 1949); rpt. in
Critical Essays on Herman Melville's Typee, ed. Milton R. Stern ( Boston: G.K. Hall & Co.,
1982), pp. 9697.
170
31 Melville's gravestone depicts an unraveled but blank scroll. A pen is partially visible behind it.
32 Oxford English Dictionary I, p. 571.
Chapter 3
1 Herman Melville, WhiteJacket; or, the World in a Manof War, ed. Harrison Hayford , Hershel
Parker, and G. Thomas Tanselle ( Evanston and Chicago: Northwestern University Press and
The Newberry Library, 1970), p. 80. All further page references to this edition will be given
parenthetically in the text.
2 For a discussion of the bibliographical events and their relationship to events in Omoo see
Gordon Roper, "Historical Note" in Herman Melville, Omoo: A Narration of Adventures in the
South Seas, ed. Harrison Hayford, Hershel Parker , G. Thomas Tanselle ( Evanston and
Chicago: Northwestern University Press and The Newberry Library, 1968), pp. 32022.
3 James Duban, Melville's Major Fiction: Politics, Theology, and Imagination ( Dekalb:
Northern Illinois University Press, 1983), pp. 6873.
4 John Gerlach, "Messianic Nationalism in the Early Works of Herman Melville: Against Perry
Miller," Arizona Quarterly, 28 (Spring, 1972), pp. 6, 12, 25, 26. For another view see: Wai
chee Dimmock, Empire for Liberty: Melville and the Poetics of Individualism ( Princeton:
Princeton University Press, 1989), pp. 1008. Dimock interprets Melville's reform rhetoric as a
means of ingratiating himself with the reader. In her view it also serves as a means of
vocalizing the plight of the powerless while advancing the enterprise of imperialism.
5 Howard P. Vincent, The Tailoring of Melville's WhiteJacket ( Evanston: Northwestern
University Press, 1979), p. 88.
6 Merrell R. Davis and William H. Gilman, ed. The Letters of Herman Melville ( New Haven:
Yale University Press, 1960), pp. 11415.
7 Morton J. Horwitz, The Transformation of American Law, 17801860 ( Cambridge: Harvard
University Press, 1977), pp. 1630.
8 Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw ( Cambridge: Harvard
University Press, 1957), pp. 62, 63, 68. For a discussion of Commonwealth vs. Aves, see pp.
6268.
9 Levy p. 75. For a discussion of this case see pp. 7378.
10 Levy, p. 80. For a discussion of the Latimer case pp. 7885. For a quotation cited from The
Liberator, see note no. 31, p. 82. For quotation cited from The Law Reporter, see note no. 37, p.
84.
11 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process ( New Haven: Yale
University Press, 1975), pp. 208, 224.
171
12 Levy, pp. 1213.
13 Henry David Thoreau, "Civil Disobedience," Walden and Other Writings, ed. Brooks Atkinson
( New York: Random House, 1950), pp. 63637.
14 William M. Wiecek, "Latimer, Lawyers, Abolitionists and the Problem of Unjust Laws," in
Antislavery Reconsidered: New Perspectives on the Abolitionists, ed. Lewis Perry and Michael
Fellman ( Baton Rouge: Louisiana State University Press, 1979), pp. 219225.
15 Carolyn L. Karcher, Shadow Over the Promised Land: Slavery, Race, and Violence in
Melville's America ( Baton Rouge: Louisiana State University Press, 1980), p. 17. Sidney
Kaplan, "Herman Melville and the National Sin: The Meaning of 'Benito Cereno,'" Journal of
Negro History, xli ( October, 1956), pp. 31138. Brook Thomas, "The Legal Fictions of Herman
Melville and Lemuel Shaw," Critical Inquiry 11, No. 1 ( September, 1984), p. 49. H. Bruce
Franklin , "Herman Melville: Artist of the Worker's World," in Weapons of Criticism: Marxism
in America and the Literary Tradition, ed: Norman Rudich ( Palo Alto California, 1976), p.
287. Karcher sees Melville's divided view between conformity and rebellion as paralleling
Shaw's rulings of the period, and interprets Melville's disagreement with abolitionists as based
upon their impeding American millennial aspirations. Kaplan sees Melville pursuing a strategy
of containment of slavery to avert violence worse than slavery itself. Thomas views Melville's
ambivalence as related to constraints of ideology, creating a situation in which Melville could
not imagine alternatives to the forms of society with which his texts deal. Franklin interprets
Melville as having the radical perspective of a classconscious worker based upon his family's
difficult financial circumstances, his working among the oppressed aboard ships and his stay in
the South Pacific which was then being colonized.
My own view concerning Melville's ambivalent attitude towards rebellion stresses his
understanding of the divided nature of American law, with natural law embodying the moral
argument, and positivism stressing obedience even to unjust laws.
16 Keith Huntress, "Guinea' of WhiteJacket and Chief Justice Shaw," American Literature, 43
( January, 1972), pp. 63941.
17 Priscilla Allen Zirker, "Evidence of the Slavery Dilemma in WhiteJacket," American
Quarterly, 18 ( 1996), p. 483.
18 Karcher, pp. 3955.
19 Jonathan A. Glickstein, "'Poverty is Not Slavery': American Abolitionists and the Competitive
Labor Market," in Antislavery Reconsidered: New Perspectives on the Abolitionists, ed. Lewis
Perry and Michael Fellman ( Baton Rouge: Louisiana State University Press, 1979), pp.
195218. This critic discusses how abolitionits were often supportive of inequalities within the
Northern economic system. Their view of poverty and economic competition as beneficial
coincides with a strong emphasis on individualistic "evangelical religious tenets" (p. 196). They
did not see how their belief in individual resiliency and "moral power" might contribute to
conditions of exploitation.
172
Thus the critical view of the slave may perhaps be identified with aspects of abolitionist views
rather than only antiabolitionist views.
20 Vincent, The Tailoring of Melville's WhiteJacket, pp. 13638. Vincent traces Melville's use of
sources for the novel and remarks on the unique character of the Cuticle chapters. Edward H.
Rosenberry, Melville ( London: Routledge and Kegan Paul, 1979), p. 69. This critic also notes
the special characterization of the surgeon.
21 Duban, p. 73, note 26.
22 Letters, pp. 9192.
23 Thoreau, "Civil Disobedience," p. 644.
Chapter 4
1 James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of the Law ( Madison:
The University of Wisconsin Press, 1985). See especially pp. 16891.
2 Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw ( Cambridge: Harvard
University Press, 1957), pp. 112, 113, 114, 115. According to Levy, Shaw specifically inverted
logic by asserting "unreasoned grounds for decision" and then raising the question in such a
way as to bring forth his "separate but equal doctrine" (p. 15). Shaw also placed discretionary
powers to classify pupils by race in the school committee (p. 114). Shaw's ruling introduced
into Massachusetts law the power of a governmental body to decide the legal rights of people
on the basis of race and, therefore, he was bound to show not only that discrimination was
allowable, but also that it was reasonable. Shaw seems to have favored his own inclinations in
this matter because he did not look into existing circumstances with as much attention as he
might have. He could have evaluated the experience in integrated schools within Massachusetts
at this time (p. 116).
3 Harrison Hayford, "Unnecessary Duplicates: A Key to the Writing of MobyDick," in New
Perspectives on Melville, ed. Faith Pullin and Hershel Parker ( Edinburgh: Edinburgh
University Press, 1978), pp. 12861. On the genesis of MobyDick see also: Leon Howard,
Herman Melville: A Biography ( Berkeley: University of California Press, 1951), pp. 15079.
Howard Vincent, The Trying Out of MobyDick ( Boston: Houghton Mifflin, 1949), pp. 3552.
George R. Stewart, "The Two MobyDicks," American Literature, 25 ( January, 1954), pp.
41748.
4 Levy, pp. 92104, for a discussion of the Sims case.
5 Eleanor E. Simpson, Melville and the Negro: From Typee to 'Benito Cereno,"' American
Literature, 41 ( March, 1969), pp. 1938. This critic argues that Melville's black characters
reveal his radical view of black/white relations and sees Melville's attitude as in conflict with
Shaw's views.
173
6 Priscilla Allen Zirker, "Evidence of the Slavery Dilemma in WhiteJacket," American
Quarterly, 18 (Fall, 1966), pp. 47792. According to Zirker, Melville's racial attitudes were
influenced by prevailing stereotypes of the period.
7 Herman Melville, MobyDick; or, The Whale, ed. Harrison Hayford and Hershel Parker ( New
York: W.W. Norton, 1967), pp. 15354. All further page references to this edition will be given
parenthetically in the text.
8 Charles H. Foster, "Something in Emblems: A ReInterpretation of MobyDick," New England
Quarterly, 34 ( March, 1961), pp. 335. Foster dates the composition of Father Mapple's
sermon by reference to a letter to Hawthorne of June, 1851, p. 17. It may be argued that the
function of a judge is to interpret the Constitution and not to assert his own moral beliefs.
However, it is also possible to interpret the Constitution in line with one's moral beliefs, as had
earlier been done in some specific cases concerning slavery. The central point, however, is if
the judge can ever be entirely neutral. He is always a part of the society even though his
judgments are supposed to be made in an independent sphere. He is a particular individual
with a specific background which can never be entirely excluded from the process by which he
reaches his decision. The question then becomes to what extent have his own interests
impinged on his decisionmaking process and for what reasons?
9 Levy, pp. 16682 on the fellowservant rule. Lawrence M. Friedman and Jack Ladinsky ,
"Social Change and the Law of Industrial Accidents," Columbia Law Review, 67 ( 1967), pp.
5082. This article deals with the rise of the fellowservant rule and underlying reasons for
Shaw's implementation of it.
10 Henry Nash Smith, "The Image of Society in MobyDick," in MobyDick: Centennial Essays,
ed. Tyrus Hillway and Luther S. Mansfield ( Dallas: Southern Methodist University Press,
1953), pp. 5975. James B. Hall, "MobyDick: Parable of a Dying System," Western Review, 14
(Spring, 1959), pp. 22326. Leo Marx, The Machine in the Garden: Technology and the
Pastoral Ideal in America ( London: Oxford University Press, 1964), pp. 277319 for a
discussion of MobyDick. H. Bruce Franklin, "Herman Melville: Artist of the Worker's World,"
in Weapons of Criticism: Marxism in America and the Literary Tradition, ed. Norman Rudich,
( Palo Alto, California, 1976). Michael T. Gilmore, American Romanticism and the
Marketplace ( Chicago: The University of Chicago Press, 1985). Gilmore argues that American
Romantics were deeply involved in the "ethos of the market." Their ambivalence towards the
marketplace economy was embodied in both the content and form of their writing.
11 Nina Baym, Novels, Readers, and Reviewers: Responses to Fiction in Antebellure America
( Ithaca: Cornell University Press, 1984). For discussion of plot, see pp. 6380, character, pp.
82 107, aspects of the narrator, pp. 12951. Baym specifically takes issue with theories of
literary history that hold that antebellum novels were created in an atmosphere hostile to
fiction (p. 13). She also argues against the idea that the "sparseness" of American social life
174
made it extremely difficult for authors to write conventional novels (p. 13). In her conclusion
she raises questions about novel criticism and asks whether in the nineteenthcentury people
did not simply read novels for the fun of it rather than to extract serious meaning or
interpretation (pp. 27475).
12 Merrell R. Davis and William H. Gilman, ed. The Letters of Herman Melville ( New Haven:
Yale University Press, 1960), pp. 8586, 9596, 9192.
13 Herman Melville, Pierre; or, The Ambiguities, ed. Harrison Hayford, Hershel Parker , G.
Thomas Tanselle ( Evanston and Chicago: Northwestern University Press and The Newberry
Library, 1971), p. 244.
14 Mark R. Patterson, "Democratic Leadership and Narrative Authority in MobyDick," Studies
in the Novel, No. Texas State University, 16(3) (Fall, 1984), pp. 288303. This critic discusses
how Ishmael purposely blurs distinctions between fact and fiction and how the first line of the
novel commands our cooperation. He also contrasts the authority roles of Ishmael and Ahab.
Paul Brodtkorb Jr., Ishmael's White World: A Phenomenological Reading of MobyDick ( New
Haven: Yale University Press, 1965), pp. 12339. Brodtkorb discusses Ishmael as a selfadopted
role and one which is connected to his tendency to lie or tell stories as a way of relating to his
audience.
15 Hayford, "Unnecessary Duplicates: A Key to the Writing of MobyDick," for a discussion of
inconsistencies within the text.
16 Ishmael adopts a tone of praise in extolling the virtues of whalemen and whaling and he does
seem to dignify the work of the common man. Yet some of his positive statements undercut
themselves. Thus, whaling is a bloody activity but not as bloody as war. Whaling led to the
discovery of new areas for exploration, but this opened the way for American and European
menofwar to sail into savage harbors, and subdue them (p. 99). This situation was criticized as
early as Typee. Whalemen broke the domination of the Spanish crown over colonies, but
"eternal democracy" was not the result (p. 100). Whaleships carried "primitive missionaries to
their first destinations," an activity criticized in Typee. Thus although the narrator stresses the
positive influence of the experience of whaling on his development, his praise of whaling
contains critical implications as well.
17 In Chapter 32, "Cetology," Ishmael uses a method of supposedly logical categorization and
systematization. He relies on an apparently orderly arrangement of material and draws on
formal statements such as "Be it known that" and "by the above definition" (p. 119). He is
essentially taking an infinite subject and submitting it to a reasoned method in order to define
what it is and all that it contains. His statement regarding his inability to complete this task,
like the statement concerning artistic form in Billy Budd, emphasizes the difference between
logical methodology and imaginative form.
18 Vincent, p. 102.
175
19 Key critical arguments concerning "The TownHo's Story" are: Sherman Paul , "Melville's 'The
TownHo's Story,'" American Literature, 21 ( May, 1949), pp. 21221. Don Geiger, "Melville's
Black God: Contrary Evidence in 'The TownHo's Story,'" American Literamre, 25 ( January,
1954), pp. 46471. William K. Spofford, "Melville's Ambiguities: A Reevaluation of'The
TownHo's Story,'" American Literature, 41 ( May, 1969), pp. 26470. Allen C. Austin , "The
Other Side of Steelkilt: The TownHo's Satire," American Transcendental Quarterly, 52 (Fall,
1981), pp. 23752. Philip J. Egan, "Time and Ishmael's Character in 'The TownHo's Story' of
MobyDick," Studies in the Novel No. Texas State University, 14 (Winter, 1982), pp. 33747.
While Paul and Geiger argue that the episode serves a retributive function, and place Steelkilt
as a Christ figure and Radney as a demonic figure, Spofford takes a contrary view, arguing that
the characters of Steelkilt and Radney are ambiguous, and that the tale leaves the question of
guilt undecided. Austin argues against the above mentioned critics by claiming Melville's story
is ironic, employing the technique of "hoodwinking." The story then becomes a reversal of
what seems apparent. Heaven kills Christ (Radney) and permits Satan (Steelkilt) to go free.
Egan primarily deals with Ishmael as narrator and interprets the chapter as an insight into his
education as a storyteller. He sees the audience as parancling an earlier stage Ishmael himself
had gone through. It is interesting to note that if, as I argue, Melville deliberately constructed
this episode to invite reinterpretation and to provoke disparate claims, he was successful.
Contemporary criticism has followed his implied course, beginning with an attempt to define
the terms good and evil, progressing to an awareness of the mixed nature of good and evil, and
then leading to a discussion of Ishmael as narrator, the nature of story itself, and the
relationship of the audience to the story.
20 Paul and Geiger see Steelkilt as "good" and Radney as "bad" while Spofford views them as
ambiguous. Austin reverses the roles.
21 Most of the above critics discuss the audience as reflecting corruption or as part of the process
of Ishmael's education. See also: Heinz Kosak, "Ishmael's Audience in 'The TownHo's Story,'"
in MobyDick as Doubloon: Essays and Extracts ( 1851 1970), ed. Hershel Parker and
Harrison Hayford ( New York: W.W. Norton & Co., 1970), pp. 35863. This critic discusses the
audience as paralleling Melville's contemporary readers.
22 Baym, pp. 14243.
23 Letters, p. 140.
Chapter 5
1 Merrell R. Davis and William H. Gilman, ed., The Letters of Herman Melville ( New Haven:
Yale University Press, 1960), p. 143.
2 Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw ( Cambridge: Harvard
University Press, 1957), p. 208. For a discussion of Shaw's rulings on insanity see pp. 20728.
176
3 Levy, pp. 20814. For a similar view see Rogin, Subversive Genealogy, pp. 8586.
4 Levy, p. 214, note 27.
5 Herman Melville, Pierre; or, The Ambiguities, ed. Harrison Hayford, Hershel Parker , G.
Thomas Tanselle ( Evanston and Chicago: Northwestern University Press and The Newberry
Library, 1971), p. 66. All further page references to this edition will be given parenthetically in
the text.
6 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process ( New Haven and
London: Yale University Press, 1975), p. 199. For a full discussion of the moral/formal conflict
see pp. 197267.
7 Levy, p. 81, p. 334, note 68.
8 Cover, pp. 239, 101. Story's opinion in the case LaJeune Eugenic held that seizure of a vessel
could only be justified in the case of a pirate. Should a vessel not prove to be a pirate, the
searchers would have acted at their own risk. The validity of the seizures in this case depended
upon whether a slave might be characterized as a pirate by the taw of nations. Story's opinion
not only condemned the slave trade, but linked this moral perception to the law of nations.
9 Cover, pp. 244, 247. For a discussion of Jones vs. Van Zandt and Prigg see pp. 17374.
10 For arguments which interpret the Plinlimmon pamphlet positively see: William B.
Dillingham, Melville's Later Novels ( Athen and London: The University of Georgia Press,
1986), pp. 23339. Floyd C. Watkins, "Melville's Plotinus Plinlimmon and Pierre," in Reality
and Myth, ed William E. Walker and Robert L. Welker ( Nashville: Vanderbilt University
Press, 1964), pp. 3951. John J. Gross, "The Face of Plinlimmon and the 'Failures' of the
'Fifties,'" Emerson Society Quarterly, 28 ( 1962), p. 8. For arguments which view Plinlimmon
and the pamphlet in a somewhat negative way see: Nathalia Wright , Melville's Use of the
Bible ( Durham: Duke University Press, 1949), p. 176. For an interpretation that views the
pamphlet as a satire on views Melville rejected see: Brian Higgins, "Plinlimmon and the
Pamphlet Again," Studies in the Novel, 4 ( 1972), pp. 2738. For a view that the pamphlet
contains only a "provisional truth" see: Robert Milder, "Melville's 'Intentions' in Pierre,"
Studies in the Novel, 6 ( 1974), pp. 18699. See also: Merton M. Sealts Jr. , "Melville and the
Platonic Tradition" in Melton M. Sealts Jr., Pursuing Melville: 19401980 ( Madison: The
University of Wisconsin Press, 1982), p. 325. This critic interprets the pamphlet as "rejecting
all faith and philosophy, Christian or pagan" (p. 325), but remains uncertain whether the
narrator is speaking for Melville.
11 Edward H. Rosenberry, Melville ( London: Routledge and Kegan Paul, 1979), p. 96. For a
similar reading see: John Seelye, Melville: The Ironic Diagram ( Evanston: Northwestern
University Press, 1970), pp. 7880.
177
12 Brian Higgins and Hershel Parker, "The Flawed Grandeur of Melville's Pierre," in Critical
Essays on Herman Melville's Pierre; or, The Ambiguities, ed. Brian Higgins and Hershel
Parker ( Boston: G.K. Hall & Co., 1983), pp. 25665.
13 Nathaniel Hawthorne quoted in Leon Howard, Herman Melville: A Biography ( Berkeley:
University of California Press, 1951), p. 240.
14 On the relationship of fiction and falsehood in Pierre, see Richard H. Brodhead , Hawthorne,
Melville, and the Novel ( Chicago and London: The University of Chicago Press, 1973), p. 186.
Also see pp. 16393. Edgar A. Dryden, Melville's Thematics of Form.' The Great An of Telling
the Truth ( Baltimore and London: The Johns Hopkins University Press, 1968), pp. 11741.
15 Herman Melville, "Hawthorne and His Mosses," in MobyDick; or, The Whale, ed. Harrison
Hayford and ltershel Parker ( New York: W.W. Norton, 1967), pp. 54143.
16 Letters, pp. 128, 117.
17 Hershel Parker, "Why Pierre Went Wrong," Studies in the Novel, 8 ( 1976), pp. 723. This
article discusses the possibility that parts of the novel were influenced by Melville's reaction to
negative reviews of MobyDick and unfavorable contract negotiations involving Pierre.
18 Edward L. Greenstein, "Biblical Law," in Back to the Sources: Reading the Classic Jewish
Texts, ed. Barry W. Holtz ( New York: Summit Books, 1984), pp. 9698.
Chapter 6
1 Herman Melville, Pierre; or, The Ambiguities, ed. Harrison Hayford, Hershel Parker , G.
Thomas Tanselle ( Evanston and Chicago: Northwestern University Press and The Newberry
Library, 1971), p. 285. All further page references to this edition will be given parenthetically
in the text.
2 The following critics have discussed the relationship between writing and the law: John Carlos
Rowe, Through the CustomHouse: Nineteenth Century American Fiction and Modern Theory
( Baltimore and London: The Johns Hopkins University Press, 1982). See especially pp.
12038. Brook Thomas, "The Legal Fictions of Herman Melville and Lemuel Shaw," Critical
Inquiry, 11 ( September, 1984), pp. 2451. Several critics in addition to Thomas have discussed
the relationship of specific legal cases to Melville's story: T. H. Giddings , "Melville, the Colt
Adams Murder and 'Bartleby,'" Studies in American Fiction, 2 ( 1974), pp. 12332. John Stark,
"Melville, Lemuei Shaw, and 'Bartleby,'" in Bartleby The Inscrutable: A Collection of
Commentary on Herman Melville's Tale of 'Bartleby the Scrivener', ed. M. Thomas Inge
( Hamden, Connecticut: Archon Books, 1979), pp. 16673. For a discussion of the influence of
the legal mind upon the story see: Charles Mitchell, "Melville and the Spurious Truth of
Legalism," Centennial Review, 12
178
(Winter, 1968), pp. 11026. For a consideration of equity in Courts of Chancery see: Herbert F.
Smith, "Melville's Master in Chancery and His Recalcitrant Clerk," American Quarterly, 17
( 1965), pp. 73441. For implications of the legal term assumption see: Thomas Pribek, "An
Assumption of Naivete: The Tone of Melville's Lawyer," Arizona Quarterly, 41 ( 1985), pp.
13142.
3 Jay Leyda, The Melville Log ( New York: Harcourt Brace, 1951), p. 405. All further page
references to this edition will be given parenthetically in the text. See also: Donald Yannella,
"Writing the 'Other Way': Melville, the Duyckinck Crowd, and Literature for the Masses," in A
Companion to Melville Studies, ed. John Bryant ( New York: Greenwood Press, 1986), pp.
6381.
4 Susan Sontag, On Photography ( New York: Delta, 1973), p. 207.
5 Robert Taft, Photography and the American Scene: A Social History, 18391889 ( New York:
Dover Publications, Inc., 1938), pp. 344.
6 Howard P. Vincent, Melville and Hawthorne in the Berkshires: A Symposium ( Kent State
University Press, 1968), p. 13.
7 Leon Howard, Herman Melville: A Biography ( Berkerley and Los Angeles: University of
California Press, 1951), p. 223.
8 Michael Paul Rogin, Subversive Genealogy: The Politics and Art of Herman Melville ( New
York: Knopf, 1983), pp. 18386.
9 Oliver Wendell Holmes, Soundings From the Atlantic ( Boston: Ticknor and Fields, 1864), pp.
12465. All further page references to this edition will be given parenthetically in the text. For
an interesting discussion of Holmes' view of photography as related to the representation of the
civil war see: Timothy Sweet , Traces of War: Poetry, Photography, and the Crisis of the Union
( Baltimore and London: The Johns Hopkins University Press, 1990), pp. 11920; p. 103 on
photography as an appropriation of pure forms; on the potentially dehistoricizing effects of
photographic representation, p. 101. See also: Alan Trachtenberg, "Albums of War: On Reading
Civil War Photographs," Representations, 9 ( 1985), pp.132.
10 Sontag, pp. 12, 14, 16, 74, 81.
11 Herman Melville, "Bartleby the Scrivener" in Great Short Works of Herman Melville ed.
Warner Berthoff ( New York: Harper and Row, Publishers, 1969), p. 40. All further references
to this edition will be given parenthetically in the text.
12 For psychological interpretations of "Bartleby" see: Robert Abrams, "'Bartleby' and the Fragile
Pattern of the Ego," English Literary History, 45 ( 1978), pp. 38393. Morris Beja, "Bartleby
and Schizophrenia," Massachusetts Review, 19 ( 1978), pp. 55568. Mordecai Marcus,
"Melville's 'Bartletby' as Psychological Double," College English, 23 ( 1962), pp. 36568. For
existentialist readings see: Kingsley Widmer, "Melville's Radical Resistance: The Method and
Meaning of 'Bartleby,'"
179
tance: The Method and Meaning of 'Bartleby,'" Studies in the Novel, 1 ( 1969), pp. 44458.
Maurice Friedman, "'Bartleby' and the Modem Exile," in A Symposium: Bartleby The
Scrivener, ed. Howard Vincent ( Melville Annual 1965), ( Kent, Ohio: Kent State University
Press, 1966), pp. 6481. For religious interpretations see: Howard Bruce Franklin, The Wake of
the Gods: Melville's Mythology (Stanford, Calif: Stanford University Press, 1963), pp. 12736.
William Bysshe Stein, "'Bartleby': The Christian Conscience," in Vincent, pp. 10412. Donald
M. Fiene, "Bartleby the Christ," American Transcendental Quarterly, 7 ( 1970), pp. 1823. For
a recent overview of portraits of Bartleby drawn from various critical methodologies see: Dan
McCall, The Silence of Bartleby ( Ithaca and London: Cornell University Press, 1989).
13 Rogin, p. 207.
14 Marvin Fisher, Going Under: Melville's Short Fiction and the American 1850's ( Baton Rouge
and London: Louisiana State University Press, 1977), p. 181.
15 Bryan Wolf, "When Is a Painting Most Like a Whale?: Ishmael, MobyDick, and the Sublime,"
in New Essays on MobyDick; or, The Whale, ed. Richard H. Brodhead ( Cambridge:
Cambridge University Press, 1986), pp. 14243.
16 OED, Vol. 1, 1933, p. 586.
17 Webster Third New International Dictionary, 1961, p. 499.
18 OED Vol. 8, 1933, p. 337, Vol. 4, 1933, p. 451.
19 "NewYork Daguerreotyped," Putnam's Monthly 1, No. 4 ( April, 1853), pp. 35758.
20 Rowe, p. 136.
21 For a discussion of the importance of Cicero to the founders see: Robert A. Ferguson Law and
Letters in American Culture ( Cambridge: Harvard University Press, 1984), pp. 7477. Also on
the relevance of Ciceronian conceptions of law and friendship to Melville's story see: Marvin
Singleton, "Melville's 'Bartleby': Over the Republic, a Ciceronian Shadow," The Canadian
Review of American Studies 6, No. 2 (Fall, 1975), pp. 16573. On the position of Courts of
Chancery within the development of American law see: Lawrence M. Friedman, A History of
American Law ( New York: Simon and Schuster, 1973), pp. 2123, 4748.
22 Rowe, p. 122.
23 Webster, 2nd. ed., 1959, p. 448.
24 Michael Murphy '"Bartleby, The Scrivener': A Simple Reading, Arizona Quarterly, 41 ( 1985),
p. 145.
25 For interpretations which stress the economic constraints placed upon workers in the Wall
Street world see: Louise K. Barnett, "Bartleby as Alienated Worker," Studies in Short Fiction,
11 ( 1974), pp. 37985. Howard BruceFranklin
180
Franklin, The Victim as Criminal and ,Artist ( New York: Oxford University Press, 1978), pp.
5660. James C. Wilson, "'Bartleby': The Walls of Wall Street,'" Arizona Quarterly, 37 ( 1981),
pp. 33546.
26 Michael Clark, "Witches and Wall Street: Possession Is NineTenths of the Law," Texas Studies
in Literature and Language, 25( 1983), pp. 6869.
Chapter 7
1 Louis Ruchames ed., Racial Thought in America: From the Puritans to Abraham Lincoln Vol.
1 ( Amherst: University of Massachusetts Press, 1969), p. 205.
2 Herbert Aptheker, Negro Slave Revolts in the United States, 15261860 ( New York:
International Publishers, 1939), p. 67.
3 Aptheker, pp., 11, 55.
4 Henry David Thoreau, "Slavery In Massachusetts,'" in Walden and Other Writings ed. Brooks
Atkinson ( New York: Random House Inc., 1937), p. 667.
5 Jay Leyda, The Melville Log ( New York: Harcourt Brace, 1951), p. 516.
6 Among critics who view Babo as a force of evil, see: Rosalie Feltenstein, "Melville's 'Benito
Cereno," American Literature, 19 ( 1947), pp. 24555. Robert Bruce Bickley, The Method of
Melville's Short Fiction ( Durham, North Carolina: Duke University Press, 1975), pp. 1008.
Among critics who interpret the story as a condemnation of slavery, see: Joseph Schiffman,
"Critical Problems in Melville's 'Benito Cereno,'" Modern Language Quarterly, 11 ( 1950), pp.
31724. Charles I. Glicksberg, "Melville and the Negro Problem," Phylon, 2 ( 1950), pp.
20515. Warren D'Azevedo, "Revolt on the San Dominick," Phylon, 17 ( 1956), pp. 12940.
Allen Guttman, "The Enduring Innocence of Captain Amasa Delano," Boston University
Studies in English, 5 ( 1961), pp. 3545. Eleanor E. Simpson, "Melville and the Negro: From
Typee to 'Benito Cereno," American Literature, 41 ( 1969), pp. 1938. Marvin Fisher, Going
Under: Melville's Short Fiction and the American 1850's ( Baton Rouge: Louisiana State
University Press, 1977), pp. 10417. Carolyn L. Karcher , Shadow over the Promised Land:
Slavery, Race, and Violence in Melville's America ( Baton Rouge: Louisiana State University
Press, 1980), pp. 12743. Joshua Leslie and Sterling Stuckey, "The Death of Benito Cereno: A
Reading of Herman Melville on Slavery," Journal of Negro History, 67 ( 1982), pp. 287301.
Michael Paul Rogin, Subversive Genealogy: The Politics and Art of Herman Melville ( New
York: Knopf, 1983), pp. 20721. Among critics who interpret "Benito Cereno" as condoning
slavery and condemning rebellion see: Sidney Kaplan, "Herman Melville and the American
National Sin: The Meaning of 'Benito C. ereno,'" Journal of Negro History, 41 ( 1956), pp.
31138; 42 ( 1957), pp. 1137. Margaret Y. Jackson, "Melville's Use of a Real Slave Mutiny in
'Benito Cereno,'" College Language Association Journal, 4 ( 1960), pp. 7993. Kingsley
Widmer, The Ways of Nihilism: AStudy of Herman Melville's Short Novels
181
Study of Herman Melville's Short Novels ( Los Angeles: Ward Ritchie Press for California
State Colleges, 1970), pp. 5990.
7 Herman Melville, Poems of Herman Melville, ed. Douglas Robillard ( New Haven: College and
University Press, 1976), p. 163.
8 For interpretations of Delano as narrator, see: Charles G. Hoffmann, "The Shorter Fiction of
Herman Melville," South Atlantic Quarterly, 52 ( 1953), pp. 41430. Richard Hatter Fogle,
Melville's Shorter Tales ( Norman: University of Oklahoma Press, 1960), pp. 11647. Warner
Berthoff, The Example of Melville ( New Jersey:. Princeton University Press, 1962), pp.
15556.
9 Herman Melville, "The Piazza," in The PiazzaTales and Other Prose Pieces, 18391860, ed.
Harrison Hayford, Alma A. MacDougall, G. Thomas Tanselle , and others ( Evanston and
Chicago: Northwestern University Press and The Newberry Library, 1987), p. 1.
10 Herman Melville, "Benito Cereno" in The Piazza Tales and Other Prose Pieces, 18391860, ed.
Harrison Hayford, Alma A. MacDougall, G. Thomas Tanselle , and others ( Evanston and
Chicago: Northwestern University Press and The Newberry Library, 1987), p. 47. All further
page references to this edition will be given parenthetically in the text.
11 James H. Kavanagh, "That Hive of Subtlety: 'Benito Cereno' and the Liberal Hero," in
Ideology and Classic American Literature, ed. Sacvan Bercovitch and Myra Jehlen
( Cambridge: Cambridge University Press, 1986), pp. 35283. This essay discusses Delano's
ideological view of the situation aboard the San Dominick and similarly stresses his naivete as
a precondition for his violence. It does not relate it specifically to problems of law.
12 Eric J. Sundquist, Suspense and Tautology in 'Benito Cereno,"' Glyph, 8 ( 1981), pp. 10326.
This essay also discusses the implications of the disruption of narrative order and the
conversation of the two captains. This critic sees the reinsertion of the conversation as a means
of alerting the reader of the 1850's to the significance of the problem of slavery by combining
past, present and future. Whereas he suggests that the reader is left suspended between
suppression and revolt, I would argue that disruption of narrative order tends to reveal the
illusion of legal order.
13 For a discussion of these cases see: Howard Jones, Mutiny on the Amistad: The Saga of a Slave
Revolt and Its Impact on American Abolition, Law, and Diplomacy ( New York: Oxford
University Press, 1987). For specific discussion of the Creole slave mutiny see pp. 2089. Both
were cases in which slaves who had revolted aboard ship were freed through the workings of
the legal system, although through questionable reasoning.
14 James Matlack, "Attica and Melville's Benito Cereno,'"" American Transcendental Quarterly,
26 ( 1975), pp. 1823.
15 See particularly: Brook Thomas, "The Legal Fictions of Herman Melville and Lemuel Shaw,"
Critical Inquiry, 11( 1984), pp. 2451.
182
16 Ruchames, pp. 204, 203.
17 Amasa Delano, Narrative of Voyages and Travels, in the Northern and Southern Hemispheres:
Comprising Three Voyages Round the World: Together with a Voyage of Survey and Discovery
in the Pacific Ocean and Oriental Islands ( New York: Praeger Publishers, 1970). All page
references to this edition will be given parenthetically in the text.
18 Herman Melville, Mardi: and A Voyage Thither, ed. Harrison Hayford, Hershel Parker, and G.
Thomas Tanselle ( Evanston and Chicago: Northwestern University Press and The Newberry
Library, 1970), p. xvii.
19 Herman Melville, Israel Potter: His Fifty Years of Exile, ed. Harrison Hayford, Hershel Parker,
and G. Thomas Tansell ( Evanston and Chicago: Northwestern University Press and The
Newberry Library, 1982), pp. viiviii.
20 Herman Melville, The Letters of Herman Melville, ed. Merrell R. Davis and William H.
Gilman ( New Haven: Yale University Press, 1960), p. 179.
21 Harold M. Scudder, "Melville's 'Benito Cereno' and Captain Delano's Voyages," Publications
of the Modem Language Association of America, 43 ( 1928), pp. 50232.
22 Quoted in Rosalie Feltenstein, "'Benito Cereno': From Source to Symbol," in A "Benito
Cereno" Handbook, ed. Seymour L. Gross (Belmont, California: Wadsworth, 1965), p. 147.
23 In addition to Scudder, see: Rosalie Feltenstein, "Melville's 'Benito Cereno,'" American
Literature, 19 ( 1947), pp. 24555. Margaret Y. Jackson, "Melville's Use of a Real Slave Mutiny
in 'Benito Cereno," College Language Association Journal, 4 ( 1960), pp. 7993. Max Putzel,
"The Source and Symbols of Melville's 'Benito Cereno,'" American Literature, 34 ( 1962), pp.
191206. Marjorie C. Dew, "'Benito Cereno': Melville's Vision and Revision of the Source," in
̱
A + "Benito Cereno" Handbook , ed. Seymour L. Gross (Belmont, California: Wadsworth,
1965), pp. 17884. David D. Galloway, "Herman Melville's 'Benito Cereno': An Anatomy,"
Texas Studies in Literature and Language, 9 ( 1967), pp. 23952.
24 For a discussion of the use of documents to undermine historical methodology, see: James
Rogers, "Melville's Short Fiction: Many Voices, Many Modes," in Contemporary Approaches
to Narrative, ed. Anthony Mortimer (Tubingen: Narr, 1984), pp. 3950. This article primarily
stresses the unreliability of narrative viewpoint and sees Babo as the only source of reliability
in the story. Melville is thus inserting a voice of the voiceless into history.
25 Joshua Leslie and Sterling Stuckey, trans. Maria del Valle, "Avoiding the Tragedy of 'Benito
Cereno': The Official Response to Babo's Revolt," Criminal Justice History ( 1982), p. 127.
26 Leslie and Stuckey, p. 131.
183
27. Leyda, pp. 5001, 504.
28. Leon Howard, Herman Melville. A Biography ( Berkeley: University of California Press, 1967),
pp. 22021.
29. Charles G. Hoffman, "The Shorter Fiction of Herman Melville," South Atlantic Quarterly, 52
( 1953), pp. 427, 428.
30. William O. Richardson, "Melville's 'Benito Cereno': Civilization, Barbarism, and Race,"
lnterpretation: A Journal of Political Philosophy, 11 ( 1983), p. 61.
31 Allen Guttman, "In Defense of Babo," in A "Benito Cereno" Handbook, ed. Seymour L. Gross
(Belmont, California: Wadsworth, 1965), p. 144.
32 Edgar A. Dryden, Melville's Thematics of Form: The Great Art of Telling the Truth ( Baltimore,
Johns Hopkins University Press, 1968), pp. 208, 215.
33 Herman Melville, Poems, p. 43.
Chapter 8
1. For source material pertaining to the Somers Mutiny, see: Harrison Hayford, ed., The Somers
Mutiny Affair (Englewood Cliffs, New Jersey:. Prentice Hall, Inc., 1959). Jay Leyda, The
Melville Log ( New York: Gordian Press, 1969), p. 814. See reference to the publication in The
Cosmopolitan of a threepart serial by Gall Hamilton entitled "The Murder of Philip Spencer,"
June, 1889. For recent discussions of Melville's use of the Somers Mutiny in Billy Budd see:
Michael Paul Rogin, Subversive Genealogy: The Politics and Art of Herman Melville ( New
York: Alfred A. Knopf, 1983), pp. 294314. Brook Thomas , Crossexaminations of Law and
Literature: Cooper, Hawthorne, Stowe, and Melville ( Cambridge: Cambridge University Press,
1987), pp. 206. 14. For late nineteenthcentury commemoration of Lemuel Shaw see: Lemuel
S. Shaw, "Lemuel Shaw, Early and Domestic Life," in Memorial Biographies of the New
England Historic and Genealogical Society, 4 ( Boston: New England Historic and
Genealogical Society, 1885), pp. 20029. On the relationship between Billy Budd and the
Haymarket riot see: Robert K. Wallace , "Billy Budd and the Haymarket Hangings," American
Literature, 47 ( 1975), pp. 10813.
2. For a discussion of the increased standardization of late nineteenthcentury society see: Lazar
Ziff, The American 1890's: Life and Times of a Lost Generation ( Lincoln and London:
University of Nebraska Press, 1966). Robert H. Wiebe, The Search for Order 18771920 ( New
York: Hill and Wang, 1967), pp. viixiv. Alan Trachtenberg, The Incorporation of America:
Culture and Society in the Guilded Age ( New York: Hill and Wang, 1982). For general
developments in law during this period see: Lawrence M. Friedman , A History of American
Law ( New York: Simon and Schuster, 1973), pp. 29599; on corporations, pp. 44663.
184
3 David Kairys, ed., The Politics of Law: A Progressive Critique ( New York: Pantheon Books,
1982), pp. 117.
4 Herman Melville, Billy Budd, Sailor (An Inside Narrative), ed. Harrison Hayford and Melton
M. Sealts Jr. ( Chicago and London: The University of Chicago Press, 1962). All references are
from this edition and will be referred to by page numbers within the text. All references to the
editors' Introduction will also be referred to within the text.
5 Critics who have dealt with the narrator as distinct from Melville and as offering his own views
of events include the following: James Dubin, Melville's Major Fiction: Politics, Theology, and
Imagination (Dekalb: Northern Illinois University Press, 1983), pp. 24348. Lyon Evans Jr.,
"'Too Good to be True': Subverting Christian Hope,"" in William Bysshe Stein, "Billy Budd: A
Nightmare of History," Criticism, 3 (Summer, 1961), pp. 23750. Edward A. Kearns,
"Omniscient Ambiguity: The Narrators of MobyDick and Billy Budd," Emerson Society
Quarterly, No. 58, Part 1 ( 1970), pp. 11720.
6 Among the many critics whose interpretations of Vere have influenced my own, the following
are included: Leonard Casper, "The Case Against Captain Vere," Perspective, 5 (Summer,
1952), pp. 14652. Karl E. Zink, "Herman Meville and the Forms Irony and Social Criticism
in Billy Budd," Accent, 12 (Summer, 1952), pp. 13139. Marvin Mandell, "Martyrs or
Murders? A Defense of Innocence," Midwest Quarterly, 18 ( 1977) pp. 13143. Marlene
Longenecker , "Captain Vere and the Form of Truth," Studies in Short Fiction, 14 ( 1977), pp.
33743. James F. Farnham, "Captain Vere's Existential Failure," Arizona Quarterly, 37 ( 1981),
pp. 36270. Joyce Sparer Adler, War in Melville's Imagination ( New York and London: New
York University Press, 1981), pp. 16083. In my portrayal of Vere's character I have tried to
relate it to a legalistic mentality.
7 For a discussion of Shaw's behavior during the Webster trial see: Leonard W. Levy , The Law
of the Commonwealth and Chief Justice Shaw ( Cambridge, Massachusetts: Harvard University
Press, 1957), pp. 21828. For a recent discussion of the implications for Billy Budd of Shaw's
behavior during the Webster case see: Thomas, CrossExaminations, pp. 2026. For another
recent discussion see: Tom Quirk, "The Judge Dragged to the Bar: Melville, Shaw, and the
Webster Murder Trial," Melville Society Extracts, 84 ( February, 1991), pp. 18. This critic
suggests that Melville's "senior scholar" brings Judge Shaw to mind and that the mature author
may have developed a sympathetic view of his fatherinlaw.
8 Levy, on insanity, Commonwealth vs. Rogers, pp. 21118.
9 C. B. Ives, "Billy Budd and the Articles of War," American Literature, xxxiv ( March, 1962),
pp. 3139. See also: Christopher W. Sten, "Vere's Use of the 'Forms': Means and Ends in Billy
Budd," American Literature, 47 ( 1975), pp. 3751.
185
10 Richard H. Weisberg, "How Judges Speak: Some Lessons on Adjudication in Billy Budd,
Sailor with an Application to Justice Rehnquist," New York University Law Review, 57 ( 1982),
pp. 169.
11 Richard H. Weisberg, The Failure of the Word: The Protagonists as Lawyer in Modem Fiction (
New Haven and London: Yale University Press, 1984), pp. 14176. For a critique of Wcisberg's
views see: Richard A. Posner, Law and Literature: A Misunderstood Relation ( Cambridge,
Massachusetts: Harvard University Press, 1988), pp. 13237. For a specific discussion of Billy
Budd see: Richard A. Posner, "Comment on Richard Weisberg's Interpretation of Billy Budd,"
Cardozo Studies in Law and Literature 1, No. I (Spring, 1989), pp. 7179. Posner views
Captain Verc positively and sees no flaw either in the system or execution of the law.
12 Thomas Cross. Examinations pp. 21213.
13 For a discussion of this phenomenon and some of its implications see: Peter Gabel ,
"Reification in Legal Reasoning," Research in Law and Sociology, 3 ( 1980), pp. 2851. Also:
Peter Gabel, "Founding Father Knows Best: A Response to Tushnet," Tikkun 1, No. 2 ( 1986),
pp. 4145.
14 Brook Thomas, "The Legal Fictions of Herman Melville and Lemuel Shaw," Critical Inquiry,
11 ( September, 1984), p. 39. Cross. Examinations, pp. 24650.
15 Stanton Garner, "Fraud as Fact in Herman Melville's Billy Budd," San Jose Studies, iv ( 1978),
pp. 83105.
16 For an interpretation of Billy Budd that stresses the impact of late nineteenthcentury historical
events see: H. Bruce Franklin, "From Empire to Empire: Billy Budd, Sailor," in Herman
Melville: Reassessments, ed. A. Robert Lee ( New York: Barnes and Noble, 1984), pp. 199216.
17 Among critics who have discussed the form of Billy Budd, conclusions are wide ranging. For
differing views see: Rogin, Subversive Genealogy. This critic claims that the forms of Vere's
court defeated the form of the novel and that the form of Billy Budd has driven out novelistic
life (pp. 3001). Rogin sees Melville's formalism as withdrawal from society and the creation
of a world in which transformation is impossible (p. 302). Thomas, Cross. Examinations. This
critic attempts to view formalism as not necessarily Melville's acceptance of Vere's measured
forms, but he sees Melville as limited in what his response could be. My interpretation sees
Melville's formalism as a more active challenge to the compulsory aspect of law. The fact that
the text lacks a specific political rhetoric does not mean that it evades politics. Since political
terms such as conservative and liberal can be only relative, Melville seems to be emphasizing
not decisionmaking results but the process of decisionmaking by which particular results are
reached. See also: Barbara Johnson, "Melville's Fist: The Execution of Billy Budd," Studies in
Romanticism, 18 ( 1979), pp. 56799. This critic offers an interesting deconstructive reading of
the text, but ultimately seems to conclude that the form of the novel precludes any judgment.
For an opposing view which attacks the conser
186
vatism of this deconstructionist reading see: Brook Thomas, "Billy Budd and the Judgment of
Silence," Bucknell Review, 27 ( 1982), pp. 5178. For interpretations which discuss the
irregularities in the narrative but conclude that form confirms content see: Peter A.
Obuchowski, "Billy Budd and the Failure of Art," Studies in Short Fiction 5, No. 4 (Fall, 1978),
pp. 44552. This critic claims Melville is showing that both art and law are artificial means for
coping with injustice. Art becomes an empty form and a further means of selfdelusion (p. 45).
For a positive view of the narrator see: Walter L. Reed, "The Measured Forms of Captain
Vere," Modern Fiction Studies, 23 (Summer, 1977), pp. 22735. This critic claims the fiction is
unable to achieve the "immanent presence that it evokes" (pp. 23435). I would disagree that
Melville saw only the failure of art, as this would seem to preclude his late return to fiction
writing as a viable discourse. Robert Merrill, "The Narrative Voice in Billy Budd," Modem
Language Quarterly, 34 ( 1973), pp. 28391.
18 Morton J. Horowitz, The Transformation of American Law, 17801860 ( Cambridge,
Massachusetts: Harvard University Press, 1977). The work traces developments in American
law from natural law to instrumentalism and an increasing formalism as well as the relation of
each of these periods to one another. Trachtenberg, Incorporation of America, on centralizing
tendencies of most aspects of American life, particularly in labor relations (pp. 90120). Oliver
Wendell Holmes Jr., The Common Law ed. Mark DeWolfe Howe ( Boston: Little, Brown and
Company, 1963), pp. 533. On the primacy of the general welfare of society over the individual
see pp. 37, 41. For recent readings discussing the possible influence of Holmes upon Melville's
views in Billy Budd see: Rogin, Subversive Genealogy, p. 299. Robert A. Ferguson, Law and
Letters in American Culture ( Cambridge, Massachusetts: Harvard University Press, 1984), pp.
28890. John P. McWilliams Jr. , "Innocent Criminal or Criminal Innocence: The Trial in
American Fiction," in Carl S. Smith, John P. McWilliams Jr., and Maxwell Bloomfield , Law
and American Literature ( New York: Alfred A. Knopf, 1983), pp. 7476.
19 Richard H. Brodhead, Hawthorne, Melville, and the Novel ( Chicago and London: The
University of Chicago Press, 1973), p. 131.
20 Richard H. Brodhead, The School of Hawthorne ( New York and Oxford: Oxford University
Press, 1986), pp. 17273.
21 Trachtenberg, The Incorporation of America, pp. 12225.
22 Herman Melville, "Hawthorne and His Mosses" in MobyDick; or, The Whale, ed. Harrison
Hayford and Hershel Parker ( New York and London: W.W. Norton and Company, 1967), pp.
536, 53738, 54041, 551. See Brodhead , The School of Hawthorne, pp. 1747, for a discussion
of Hawthorne's influence on Melville's development as a prophetic writer.
23 Herman Melville, MobyDick, p. 128.
24 Paul Brodtkorb Jr., "The Definitive Billy Budd: 'But aren't it all Sham?,'" PMLA, 82 ( 1967),
pp. 603, 610. Other critics who deal with the unfinished
187
nature of the text and its implications for interpretation include: Edward M. Cifelli , "Billy
Budd: Boggy Ground to Build On," Studies in Short Fiction 13, No. 4 (Fall, 1976), pp. 46369.
Robert T. Eberwein, "The Impure Fiction of Billy Budd," Studies in the Novel, 6 ( 1974), pp.
31826.
25 Brodtkorb, pp. 61012.
26 Herman Melville, Pierre; or, The Ambiguities, ed. Harrison Hayford, Hershel Parker and G.
Thomas Tanselle ( Evanston and Chicago: Northwestern University Press and The Newberry
Library, 1971), p. 258.
27 Herman Melville, The ConfidenceMan, His Masquerade ed. Hershel Parker ( New York and
London: W.W. Norton and Company, 1971), Chapters 14, 33, 44.
28 Jay Leyda, The Melville Log ( New York: Gordian Press, 1969) p. 316 ( Melville's letter to
Lemuel Shaw, October 6, 1849); pp. 41213, ( Melville's letter to Hawthorne, June 1 [?], 1851).
29 Jay Leyda, The Melville Log ( New York: Gordian Press, 1969), p. 795. In his letter to James
Billson, December 20, 1885, Melville writes: "This species of 'fame' a waggish acquaintance
says can be manufactured to order, and sometimes is so manufactured thro the agency of a
certain house that has a correspondent in every one of the almost innumerable journals that
enlighten our millions from the Lakes to the Gulf and from the Atlantic to the Pacific."
30 Brodhead, The School of Hawthorne, p. 174.
31 Walt Whitman, "Song of Myself" in Leaves of Grass ( New York: The New American Library,
Inc., 1980), p. 49.
32 Melville, The ConfidenceMan, p. 158.
33 Miriam Quen Cheikin, "Billy Budd: Reclaimed by the NineteenthCentury," Essays in, Arts
and Sciences, 13 ( September, 1984), pp. 4359.
34 See especially: Posner, Law and Literature.
188
Index
A
Audience, response of, to "TownHo" narration in MobyDick, 72
Author
concept of, 32
and lawgiver, link between, in Pierre, 89 90
B
"Bartleby, The Scrivener:, A Story of WallStreet," 91 111
Bartleby's refusals in, 107 109
copy in, language of, photograph and, 105 107
lawyer in
relation of, to legal system, 103 105
as writer, 109 111
photographic representation in, 96 99
split between form and substance in, 107
Bartleby and lawyer, relationship between, 99 103
"Benito Cereno," 113 138
chronological distortions in, 120
121
Delano of, preCivil War dilemma of slavery and, 116
120
disruption of established order in, 120 124
law in
failure of, 113 138
literature and, 137 138
society and, 137
legal documents in, 129 130, 131
critics on, 135 136
function of, 136
perspective in, 116, 121, 125
rebellion in
encouragement of, 122 125
subversion of, 124 125
source of, 125 135
relationship to, 128 135
Billy Budd, 139 166
confrontation between Billy and Claggart in, Hawthrone and, 158 159
evolution of, Hayford and Sealts on, 162
form of, alliance of fact and nature in, 157 158
law and literature in, 166
literacy form contradicting legal form in, 154 155
narrator in, narrative style of, factual validity and, 152 153
reader's role in, 163
on secret conversation between Vere and Billy after verdict, 153 154
"space between" in, 160 162
unfinished nature of, 162 163
Vere in, 140 161. see also Vere in Billy Budd
Brodhead, Richard, on alterations in traditional forms of literature, Billy Budd and, 155
Brodtkorb, Paul, Jr., on unfinished nature of Billy Budd, 162 163
C
"Chronometricals and horologicals" in Pierre, 82 88
Clark, Michael, on narrator's problem in "Bartleby," 109
Class structure in WhiteJacket, sleeping arrangements and, 36
Confidence Man, The, discourse of power in, 160
Conflict, ordered, world of, 36 51
Contract law
golden age of, Friedman on, 22 23
moral bankruptcy of, in Typee, 22
189
Cover, Robert, on moral/formal dilemma of antislavery judges in slavery cases, 79 80
Crime, changing attitudes toward, postRevolutionary, 25
Critical Legal Studies movement, 7
Curtis, George William, on documents in "Benito Cereno," 135
D
Delano of "Benito Cereno," preCivil War dilemma of slavery and, 116 120
Dryden, Edgar A. on documents in "Benito Cereno," 136
Duban, James, 5
E
Economy, marketplace, emerging, changes in criminal law and punishment and, 26
F
Fact
and fiction, relationship between, 126 135
historical, manipulation of, in Billy Budd, 151
Fellowservant rule, Shaw on, 60
Ferguson, Robert A., 5
Fictional narrative versus legal narrative in MobyDick, 54 55, 63, 69
Fidelity, role, to justify judicial decisions, 42 43
Flogging, abolition of, 38
argument for, 44
Franklin, H. Bruce, 5
Free will
Melville on, in MobyDick, 61 62
Shaw on, 60
Friedman, Lawrence M., on golden age of law of contract, 22 23
Fugitive Slave Act of 1850, Shaw and, 57, 59
G
Garner, Stanton, on historical material in Billy Budd, 151
Good and evil, distinguishing between
Melville on, in Pierre, 78 79
Shaw on, 78 79
Grattan, C. Hartley, on "Benito Cereno," 127
Guttman, Allen, on documents in "Benito Cereno," 136
H
Hawthorne, Nathaniel, influence of, on Melville, 156 157
in writing of Billy Budd, 159
Hayford, Harrison, 5
and Sealts on evolution of Billy Budd, 162
Hoffman, Charles G., on documents in "Benito Cereno," 135 136
Holmes, Oliver Wendell, on photography, 94 96
Horwitz, Morton J., 67
on postRevolutionary transformation of American law, 21
Howard, Leon, 5
on documents in "Benito Cereno," 135
Human nature in Pierre, 77
I
Insanity
of Billy Budd, 146
Shaw's judicial decisions on, 76
77
Institutionalized power, Melville on, 19
Ishmael in MobyDick
purpose of, 68 69
testimony of, problems created by, 65
"The TownHo's Story" told by, 69 73
Ives, C. B., on Vere's legal errors in Billy Budd, 146 147
J
Judge(s)
antislavery, proslavery rulings of, 79 82
Civil War and, 8 9
190
slave
law
and,
89
Judge/captain, attack on, in WhiteJacket, 38
Judgement, "space between" and, in Billy Budd, 160 162
K
Kairy, David, on attributes of decisionmaking process of legal reasoning, 15
Karcher, Carolyn L., 5
L
Labor relations, MobyDick and, 60
62
Language(s)
in legal system, photograph and, 110 111
native, language of law and, 17
Law
civilized versus natural, in Typee, 28 29
depersonalization of, standardization and, 23 24
failure of, 113138
slavery and, 114
and literature, enmeshing of, in "Benito Cereno," 137 138
Melville's imaginative conception of, 32 33
response of, to pressure, 125
and society, interdependence of, in "Benito Cereno," 137
system of, contradictory perceptions of, 150
Lawgiver and author, link between, in Pierre, 89 90
Legal background, 3 4
Legal form, incorporation of, into narrative form in "Benito Cereno," 135
Legal formalism
Billy Budd in response to, 151
selfconscious form of Pierre and, 75 76
Legal jargon, native languages and, 17
Legal methodology
in legal chapters of MobyDick, 66
Melville's interest in, narrative form in MobyDick and, 62
64
Typee and, 14 15
Legal narrative versus fictional narrative in MobyDick, 54 55, 63, 69
Legal reasoning, Vere's errors in, in Billy Budd, 145 148
Legal terminology in "Bartleby," oppositional meanings of, 100
Legal transformation, postRevolutionary, significant features of, 21
Legalism as defense for proslavery legal decisions, 120
Levy, Leonard W., 6
Leyda, Jay, 5
Literature
and authority, connection between, in Billy Budd, 157
158
and law
enmeshing of, in "Benito Cereno," 137 138
relationship between, early look at, 11 33
M
Marketplace economy, emerging, changes in criminal law and punishment and, 26
Marnoo in Typee as artistic model, 31
McLean, John, proslavery rulings of, 80 81
Messianic nationalism in WhiteJacket, 37 38
Missionaries, attack on, in Typee, 17
18
MobyDick, 53 73
Ahab's purpose in, 68 69
fugitive slave issue in, 57 59
Ishmael's purpose in, 68 69
Ishmael's testimony in, problems created by, 65
labor relations in, 60 62
legal chapters in, 65 69
moral law versus man's law in, 59
191
narrative
form in,
Melville's
interest in
legal
methodology
and, 62 64
nonwhite
characters in,
58 59
racial
equality in,
56
rejection of
truthseeking
in, 73
separatebut
equal
doctrine in,
56
"The Town
Ho's Story"
in, 69 73
Money, attack on, in Typee, 26 28
Moral/formal dilemma of antislavery judges in slavery cases, 79 80
Morality, law and, conflict between, 8
Motivations, human, in Pierre, 77 78
N
Narrative, fictional versus legal, in MobyDick, 54 55, 63, 69
Narrative form of novel in MobyDick, legal methodology and, 62 64
Nationalism, messianic, in WhiteJacket, 37 38
Natural law
appeals to, insufficiency of, in Pierre, 82
in Melville's critique of legal system, 43 44
Nature, discourse of, in Billy Budd's confrontation with Claggart, 158
Nelson, William E., on methods of punishment in nineteenth century, 25
Newspapers, appearance of, personal isolation and, Billy Budd and, 155 156
O
Ordered conflict, world of, 36 51
P
Photograph, language in legal system and, 110 111
Photographic representation, verbal thoughtmaking and, in "Bartleby," 101 102
Photography
Melville's objections to, 92, 93 94
Oliver Wendell Holmes on, 94 96
Susan Sontag on, 96
Pierre, 75 90
correspondence between man's world and God's world in, 86, 87, 90
discontinuity of, 89 90
distinguishing food and evil in, 78
human nature in, 77
insanity in, 79
Melville's ambivalent view of writing in, 87 89
motivation for human behavior in, 77 78
pamphlet "Chronometricals and Horologicals" in, 82 88
Plotinus Plinlimmon in, skepticism of, 85 86
selfconscious form of, legal formalism and, 75 76
virtuous expediency in, 84 85
Positivism in Melville's critique of legal system, 43 44
Posner, Richard A., 6
Power
discourse of
in Claggart's confrontation with Billy Budd, 158
Vete's use of, in Billy Budd, 159 160
institutionalized, Melville on, 19
Precedents, blindly following, attack on, 37
Punishment, civilized versus native methods of, in Typee, 24 25
R
Racial equality in MobyDick, 56
Rebellion in "Benito Cereno"
encouragement of, 122 125
subversion of, 124 125
Representation, photographic, verbal thoughtmaking and, in "Bartleby," 101 102
Reproduction, photographic, Melville's objections to, 92, 93
94
Richardson, William O., on documents in "Benito Cereno," 136
Rogin, Michael Paul, 5
192
Role fidelity to justify judicial decisions, 42 43
S
Scudder, Harold, discovery of source for "Benito Cereno" by, 127
Sealts and Hayford on evolution of Billy Budd, 162
Separatebutequal doctrine, 55 56
MobyDick and, 56
Shaw, Lemuel
development of American law and, 3 4
on fellowservant rule, 60
financial assistance of, to Melville, 11, 12
Fugitive Slave Act of 1850 and, 57, 59
on industrial capitalism, 18 19
on insanity, 76 77, 79
Billy Budd and, 146
on principle in common law, molding of, 16
proslavery rulings of, 80
relationship with, 11 12
role fidelity to justify decisions of, 42
on school segregation, 55
on slavery, 19
slavery decisions of, 39 41
Slave as potential disruptive force in "Benito Cereno," 123
Slave law, judges and, 8 9
Slavery
decisions on, Shaw's, 39 41
impending conflict over, in WhiteJacket, 47 51
Melville's ambivalence on, 46 47
precivil War dilemma of, Delano of "Benito Cereno" and, 116
120
rulings of antislavery judges for, 79 82
Shaw on, 19
treatment of, in "Benito Cereno,' 114
Society and law, interdependence of, in "Benito Cereno," 137
Sontag, Susan, on photography, 96
Spelling of native words, liberties with, 17
Standardization, depersonalization of law and, 23 24
Story, Joseph, proslavery rulings of, 80
T
Tappa in Typee, vacillating character of, 29 31
Temperance Society in Typee, class distinctions and, 18
Thomas, Brook, 5 6
on judicial response to political pressures, 148
on Melville's point of view on Vere's actions in Billy Budd's trial, 150 151
Time in Typee, 16 17
Tommo in Typee, vacillating character of, 29 31
Typee, 11 33
attack on missionaries in, 17 18
attack on money in, 26 28
civilized versus native methods of punishment in, 24 25
civilized versus natural law in, 28
29
legal methodology and, 14 15
Marnoo in, as artistic model, 31
moral bankruptcy of contract law in, 22
narrator's jumping ship in, 21 22
relationship between Shaw and Melville and, 12 14
spelling of native words in, 17
Tappa in, significance of, 31
time in, 16 17
Tommo in, vacillating character of, 29 31
V
Vere in Billy Budd
description of, initial, 141 142
introduction of, 140
judgment of, 142 143
legalistic mentality of, 145
reliance of, on books, consequences of, 142 144
193
rhetoric
of
power
of, at
Billy's
trial,
148
150
W
Weisberg, Richard H., 5, 6
on Vere's legal errors in Billy Budd, 147
WhiteJacket, 35 51
class structure in, sleeping arrangements and, 36
disobedience to authority in, 45
impending war over slavery and, 47 51
judge/captain in, attack on, 38 39
law as social foundation in, 35
legal conflicts in, 35 36
legal ideal versus reality in, 43
legal tensions in, 43
messianic nationalism in, 37 38
remedy of defects in, 47 50
slavery issue in, 46 47
Words, artifice of, Melville on, 20
Writing, Melville's ambivalent view of, in Pierre, 87 89
Z
"Zone of immunity" in law, 24
194