AMERICANA

"“An Irreparable Loss to Literature”: Law and Literature in Herman Melville’s “Bartleby the Scrivener”" by Gyula Somogyi

Gyula Somogyi is Senior Assistant Professor at the Comparative Literature and Culture Department, Institute of Hungarian Linguistics and Literary Studies, Faculty of Arts, University of Miskolc, Hungary. His main areas of research and teaching are 19th and 20th century literature (especially Romanticisim and 19th century American fiction), literary and cultural theory (especially deconstruction, psychoanalysis, gender and trauma studies, law and literature, cultural memory), visual and popular culture, media studies. Email: sgyula@gmail.com

Introduction

At the end of Honoré de Balzac’s Colonel Chabert, the lawyer Derville comes to the following conclusion about certain cases that he witnessed in his legal praxis: “I can’t tell you all that I’ve seen, for I have witnessed crimes against which justice is impotent. At all events, all the horrendous things that novelists think they are making up always fall short of the truth.” (Balzac 82-83) We could argue, law and literature are two very powerful discourses that we have for apprehending the unnarratable, yet in Derville’s view, they are both bound to miss: the lawyer’s words testify to the inability of both literature and the law to understand and deal with what can be labeled as “the horror of the real.” As a way for thinking through the theoretical issues stemming from this insight, I will turn to a reading of Herman Melville’s masterpiece, “Bartleby the Scrivener” (1853).

The short story’s significance in both Melville’s oeuvre, as well as in American literature in general, is beyond doubt, despite the fact that its meaning constantly eludes us, or, it might be argued, precisely because it eludes us. J. Hillis Miller argues that “A large secondary literature has grown up around »Bartleby,« remarkable for its multiplicity and diversity. All claim in one way or another to have identified Bartleby and to have accounted for him, to have done him justice.” (Miller 173) Dan McCall calls this multitude of critical accounts “the Bartleby Industry” (McCall x, cf. Knighton 185, Zlogar 505), while Andrew Knighton argues that “The critical machinery of that uncommonly productive industry has long strained to dissect the tale’s various ambivalences; innumerable critical ventures enter into contradiction, overwhelm each other, and refuse to work together” (Knighton 185), revealing that the history of criticism is far from heading towards a possible synthesis, or a “solution.” Following Dieter Meindl, Katalin Kállay G. sums up the various critical approaches to the short story in the following way:

Bartleby can be—and has been—seen as a rebel against and a victim of American business-like, money-making society, as a nihilistic rebel, as the lawyer’s subconscious personified, as a lunatic suffering from dementia praecox, as a mental case of catatonia or anorexia, as a new incarnation of Jesus Christ, as a representative of the Derridean ecriture, as a symbol of death, the story can be—and has been—further understood as a parable of Melville’s own fate and the fate of the artist during Melville’s time, as a prefiguration of modern absurdity, or a demonstration of the human situation itself (Kállay 126).

From this long enumeration it seems obvious that Bartleby is like the “blank stone scroll” on Herman Melville’s tombstone missing an epigraph, which is, in George S. Levine’s interpretation, “a haunting testament, perhaps, to the mysteries of silence but a tantalizing invitation as well to further inscription.” (Levine, ed. 10) Instead of trying to add yet another interpretation to the long list, thereby inscribing the “blank stone scroll,” I would like to focus on (failed) acts of reading in the short story, as they are negotiated between law and literature.

Literary and Legal Representation

After a cursory glimpse at his present condition, the narrator of the story begins his narrative by talking about an “oppressed class” of people:

I am a rather elderly man. The nature of my avocations for the last thirty years has brought me into more than ordinary contact with what would seem an interesting and somewhat singular set of men, of whom as yet nothing that I know of has ever been written—I mean the law-copyists or scriveners. (Melville 92, emphasis added)

The lawyer is writing a story about a group of people, “law-copyists or scriveners,” who have never been properly represented in (legal or literary) narratives, giving a voice and a face to them. In this sense, the text’s master trope seems to be prosopopeia, the rhetorical figure which Paul de Man defines as “the fiction of an apostrophe to an absent, deceased, or voiceless entity, which posits the possibility of the latter’s reply and confers upon it the power of speech.” (Rhetoric 75-76) The relevance of this rhetorical figure to the legal context was first demonstrated by Quintillian’s Institutio Oratoria, where the concept also included “the invention of a hypothetical voice for a client in a court of law” (Paxson 17), thereby placing the figure at the heart of legal representation (cf. Cohen 166). The story in this sense is shaped by the structure of legal representation, in which the lawyer is representing someone who does not have a voice. In a certain reading, the final aim of Melville’s lawyer could be to translate the unresponsive silence and the insistent refusal of Bartleby into an eloquent plea to redeem the hopelessness of the human condition in the world of business, even though—as it is suggested by the latent meaning of the word avocation—this can only be a diversion from the “original” voice.¹

The authority of the narrator to represent these law-copyists or scriveners, as he explains, comes from the fact that

I have known very many of them, professionally and privately, and if I pleased, could relate diverse histories, at which good-natured gentlemen might smile, and sentimental souls might weep. But I waive the biographies of all other scriveners for a few passages in the life of Bartleby, who was a scrivener the strangest I ever saw or heard of. While of other law-copyists I might write the complete life, of Bartleby, nothing of the sort can be done. I believe that no materials exist for a full and satisfactory biography of this man. It is an irreparable loss to literature. Bartleby was one of those beings of whom nothing is ascertainable, except from the original sources, and in his case those are very small. What my own astonished eyes saw of Bartleby, that is all I know of him, except, indeed, one vague report which will appear in the sequel. (Melville 92)

As the protagonist explains, the lack of a satisfactory account of Bartleby’s life becomes “an irreparable loss to literature.” However, this begs the questions of in what sense is literature meant here? ‘Literature’ here may refer both to ‘literature’ in the strict sense, and, as Miller warns us, it can also refer to the sum total of previous legal cases: legal case histories can also be thought of as a body of ‘literature’ (Miller 146).

Lacking a detailed life story, Bartleby becomes a blind spot (“an irreparable loss”) in the text that the story constantly tries to comprehend, but the narrative itself only presents us with failed acts of understanding. The title character seems to elude legal definition, constituting a blind spot of legal inquiry, revealing a “literariness” at the heart of legal theory and practice. The only way of dealing with this lack or loss is through literature, which, in Shoshana Felman’s or Barbara Johnson’s view, is the other of, or a supplement to, legal discourse (Felman 8, 55, Johnson Critical 107, Johnson Feminist 13). Legal inquiry in this sense needs something other than itself (literature) to give a proper account of what it had missed and cannot recover. Literature in this sense could also be regarded as the “conscience” of law, as the lawyer’s narrative emerges from a moral residue of the unjust legal procedure against Bartleby. Yet, if literature is structured around the model of legal representation, it runs the risk of repeating the blindness of legal discourse, which could not understand the recalcitrant scrivener. If this is so, this would turn the story into an allegory that Derville was talking about: the inability of legal discourse and literature to give a proper explanation to the enigma within the text. In other words, the case the narrator-lawyer is about to present us is in excess of his usual “avocations” and, in Gregory S. Jay’s opinion, “occasions for the first time in the lawyer’s experience the challenge of an ethical decision, in other words, a decision for which no absolute law can provide an a priori judgment.” (Jay 26)

Legal Failure

The narrator presents his legal career the following way:

I belong to a profession proverbially energetic and nervous, even to turbulence, at times, yet nothing of that sort have I ever suffered to invade my peace. I am one of those unambitious lawyers who never addresses a jury, or in any way draws down public applause; but in the cool tranquility of a snug retreat, do a snug business among rich men’s bonds and mortgages and title-deeds. (Melville 92-93)

He is thus “a conveyancer and title hunter, and drawer-up of recondite documents of all sorts” (Melville 99), dealing with legal documents about property: “the lawyer’s offices are the site where properties are subject to representation and reproduction” (Jay 20). Melville’s short story depicts a capitalist society where property thus becomes synonymous to “selfhood” (Caruth “Claims” 430, footnote 10).² In this way, “Bartleby the Scrivener” offers itself as a literary supplement to Karl Marx’s redefinition of the subject and the self within capitalist society (cf. Cohen 159, Jay 23, West 225, Brown 134, Levine ed. 9).³ The story thus can be read as an allegory struggling with the very definition of the human within a capitalist society establishing itself on written contracts and deeds regulating property—after all, as the subtitle says, this is “A Story of Wall-Street.” However, this personhood, or the definition of the human derived from legal documents is not at all straightforward due to the documents being “recondite” or obscure, even suggesting “unreadable,” or at least requiring professional aid in interpretation.

This legal machinery regulating property and personhood is contingent upon what Tom Cohen calls “a certain vision of the logos and mimesis itself” (Cohen 8): the meticulous work of copying, “the production of copies based on originals.” (Cohen 152) The story stages various threats to this mimetic function of logos: preceding the age of mechanical reproduction, the very materiality of copying seems to interrupt the authority of the documents. Turkey, one of the scriveners, “would be reckless and sadly given to making blots in the afternoon, but some days, he went further, and was rather noisy.” (Melville 94) These blots are touches, or residues of error that nevertheless refer to the dimension of the “human” within the obscure, inhuman discourse of legal documents. Nippers, the other copyist symbolizes a different threat to the mimetic logos: at times he shows “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.” (Melville 96) He tries to usurp the master-narrator’s position by writing texts on his own for his shady clientele. Even with these threats, the cogwheels of the “logos-machine” are working fine, up to a point:

Some time prior to the period at which this little history begins, my avocations had been largely increased. The good old office, now extinct in the State of New York, of a Master in Chancery, had been conferred upon me. It was not a very arduous office, but very pleasantly remunerative. I seldom lose my temper; much more seldom indulge in dangerous indignation at wrongs and outrages; but I must be permitted to be rash here and declare, that I consider the sudden and violent abrogation of the office of Master in Chancery, by the new Constitution, as a—premature act; inasmuch as I had counted upon a life-lease of the profits, whereas I only received those of a few short years. But this is by the way. (Melville 93)

This aside comment is far from just being “by the way,” it refers to an issue central to the short story. The office of the Master in Chancery was a legal construct historically called into effect to remedy what common law could not guarantee (Smith 736-737). It fulfilled a paternalistic, protective, or “balancing” (Hudson 5, Thomas Cross-Examinations 172-173) function of the law, and as an instrument of equity, it strived to rectify the injustices that were possible within the existing legal framework, for example unjust actions committed against workers. In this way, equity became a supplement to common law (Kuebrich 399) by trying to embody what was excluded from market regulations: “equity ‘mitigates the rigour of the common law’ so that the letter of the law is not applied in such a strict way that it may cause injustice.” (Hudson 3) To paraphrase Ortwin de Graef here, equity law embraces “the liminal promise of ethical substance left gratuitously suspended” in common law (de Graef “Instance” 252). It is somewhat ironical from this perspective that the office came to “abrogated” later, situating the story on the margins of a legal reform: Article XIV. § 8. of the Third Constitution of New York (1846) abolished the “anachronistic” office of Master in Chancery (Smith 736). This change was seen by many as “the growing power of capital and the diminution of natural rights and moral argument” (Kuebrich 399), yet this change strikes the narrator mostly as a loss of prestige and wealth, rather than as an allegorical loss of legal conscience that could regulate the excesses of the law.

Bartleby’s very appearance stems from the narrator’s acquisition of this office, which was predicated on the slippage between equity and market law:

Now my original business—that of a conveyancer and title hunter, and drawer-up of recondite documents of all sorts—was considerably increased by receiving the master’s office. There was now great work for scriveners. Not only must I push the clerks already with me, but I must have additional help. In answer to my advertisement, 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. (Melville 99)

“There was now great work for scriveners,”⁴ so the title character is at once inserted into the mimetic structure of the office, and he does his job quite well:

At first Bartleby did an extraordinary quantity of writing. As if long famishing for something to copy, he seemed to gorge himself on my documents. There was no pause for digestion. He ran a day and night line, copying by sun-light and by candle-light. I should have been quite delighted with his application, had he been cheerfully industrious. But he wrote on silently, palely, mechanically. (Melville 100)

Interestingly enough, the lawyer’s only criticism about him is that he lacks the periodical insubordination of his other scrivener, he writes “mechanically,” like a machine, fulfilling every expectation. He is working laboriously until one fine day he refuses to work anymore, seeking refuge in his polite, but firm “I would prefer not to” (Melville 101), which completely baffles and “unmans” (Melville 109) the narrator – no wonder that David S. Randall reads this act of insubordination as a subversion of the Hegelian master-bondsman dialectic presented in The Phenomenology of Spirit (Randall 94). Miller reads this turn of phrase as

neither constative nor performative, or perhaps it might be better to say that is an exceedingly disquieting form of performative. It is a use of words to make something happen, but what it makes happen is to bring about the impossibility of making anything happen with words. It performs the blockage of all those forms of performative language by which the narrator lives and makes his living. (Miller 256)

Jay suggests that “Bartleby’s withdrawal from writing and his refusal to copy may be interpreted as a willed disobedience to every prescription in his culture’s »general text,«” and thinks that “Bartleby’s is a pure negation that frustrates every attempt that the law makes to recuperate it.” (Jay 21-22)⁵ Cohen interprets this refusal as a “dispossession” of the Law Offices (Cohen 8), an interruption of the mimetic system of logos (Cohen 152-153). This interruption of work also entails an interruption of sense, leaving the narrator, the reader, and the critics of the tale wonder why he is refusing to work. By trying to find an answer to this question that in their view seems to constitute to the meaning of the story, the critical accounts also risk reinscribing Bartleby to the very system his refusal came to “dispossess.”

The lawyer soon comes to imagine Bartleby as a responsibility coming from “fate”:

Gradually I slid into the persuasion that these troubles of mine touching the scrivener, had been all predestinated from eternity, and Bartleby was billeted upon me for some mysterious purpose of an all-wise Providence, which it was not for a mere mortal like me to fathom. (Melville 121)

Yet this model of responsibility as destiny is soon substituted by another model, which is predicated on pure “chance”:

I thought all was going well, when a perturbed looking stranger visited me, inquiring whether I was the person who had recently occupied rooms at No.— Wall-street.
Full of forebodings, I replied that I was.
“Then, sir,” said the stranger, who proved a lawyer, “you are responsible for the man you left there. He refuses to do any copying; he refuses to do any thing; he says he prefers not to; and he refuses to quit the premises.” (Melville 124)

This metonymically structured notion of responsibility (“you are responsible for the man you left there”) is also the model that legal discourse is advocating, the visitor being a lawyer, too. From here on, Bartleby becomes a “fixture,” a “millstone” for the narrator: “not only useless as a necklace, but afflictive to bear. Yet I was sorry for him.” (Melville 115) However, this pity soon passes, as he comes to see Bartleby’s acts as an undermining of his authority:

And as the idea came upon me of his possibly turning out a long-lived man, and keep occupying my chambers, and denying my authority; and perplexing my visitors; and scandalizing my professional reputation; and casting a general gloom over the premises. (Melville 122)

The narrator is a man of appearances, and in a sense, Bartleby defaces him, and becomes an “apparition,” a “ghost,” or even an “intolerable incubus” for him (Melville 108, 123, 122, cf. Miller 162). He clearly has to come up with a solution, though: “What shall I do? what ought I to do? what does conscience say I should do with this man, or rather ghost.” (Melville 123) He asks his former employee: “What earthly right have you to stay here? do you pay any rent? Do you pay my taxes? Or is this property yours?” (Melville 119) These questions all pertain to the capitalist definition of legal personhood based on property. The little property Bartleby has (a little savings bank in his drawers) is hardly enough to count him as a person. The lawyer seems convinced that

something severe, something unusual must be done. What! surely you will not have him collared by a constable, and commit his innocent pallor to the common jail? And upon what ground could you procure such a thing to be done?—a vagrant, is he? What! he a vagrant, a wanderer, who refuses to budge? It is because he will not be a vagrant, then, that you seek to count him as a vagrant. That is too absurd. No visible means of support: there I have him. Wrong again: for indubitably he does support himself, and that is the only unanswerable proof that any man can show of his possessing the means so to do. No more then. Since he will not quit me, I must quit him. I will change my offices; I will move elsewhere; and give him fair notice, that if I find him on my new premises I will then proceed against him as a common trespasser. (Melville 123)

Here we have a legal solution that forecloses the notion of responsibility that the literary mode is predicated upon. Bartleby’s “non-acts” escape clear-cut legal definitions, for example, he cannot be a vagrant if he stays in one place all the time. The only way of fixing Bartleby’s uncanny meaninglessness as a “common trespasser” is to “evacuate” the offices (Cohen 152). In spite of the fact that he is not a vagrant, he is taken into custody:

When again I entered my office, lo, a note from the landlord lay upon the desk. I opened it with trembling hands. It informed me that the writer had sent to the police, and had Bartleby removed to the Tombs as a vagrant. Moreover, since I knew more about him than any one else, he wished me to appear at that place, and make a suitable statement of the facts. (Melville 127)

In other words, Bartleby was put to the Manhattan Tombs based on a legal fiction. In fact, the name of the prison suggests that this conscious act of legal misinterpretation is in fact a symbolic murder that transfers the title character from the realm of the living to the realm of the dead. It is there, in fact, that he literally dies later on. The narrator meets him one last time in the Tombs, which encounter proves to be another crucial moment in the tale: “‘I know you,’ he said, without looking round,—‘and I want nothing to say to you.’” (Melville 128) It seems that the narrator’s non-understanding stands in contrast to Bartleby’s recognition (“I know you”), and refusal of the narrator. This very last act of rejection leaves the lawyer of the tale in a symbolic “debt,” which stems from a residue of guilt translated into economic terms. This symbolic debt is, in turn, repaid by telling Bartleby’s story (cf. Miller 171-172), recuperating his blank face from multitude of faces forgotten by history.

Literary Failure

Melville’s tale represents the acts of legal understanding as essentially unethical, only aimed at fixing Bartleby’s identity to “remove him to the Tombs as a vagrant” (Melville 127), while literature emerges as a supplement to this legal framework, striving to embrace the ethical potential foreclosed in legal discourse. Within literature Bartleby can come alive again through the artifice of prosopopeia, which, however, exhibits once again some of the pressing ambivalences that necessitated the recourse to the literary mode in the first place.

The narrator first thinks that Bartleby’s initial refusal not to work is only a misunderstanding so he asks the reason: “‘And what is the reason?’ ‘Do you not see the reason for yourself,’ he indifferently replied.” (Melville 115) This is an absolutely crucial scene in the story: it represents a failed act of (legal) understanding. After the failure of rational understanding, the lawyer proceeds to “endeavor charitably to construe to his imagination what proves impossible to be solved by his judgment.” (Melville 104) Where reason falters, the literary imagination enters as its supplement, enacting the primal scene of the story itself, where legal failure flows into the literary through prosopopeia.

What miserable friendlessness and loneliness are here revealed! His poverty is great; but his solitude, how horrible! […] For the first time in my life a feeling of overpowering stinging melancholy seized me. Before, I had never experienced aught but a not-unpleasing sadness. The bond of a common humanity now drew me irresistibly to gloom. A fraternal melancholy!⁶ (Melville 109-110)

The story in this sense allegorizes Cathy Caruth’s notion that ethics and an ethical relation to the other can flow from non-understanding (Caruth “Insistence” 1). Jay also argues that “For the lawyer, the questions of will, freedom, and responsibility present themselves exactly as the effect of Bartleby’s undecidability.” (Jay 26) The problem is that even this reading proves unstable because of a possible tinge of irony the story. This ambiguity is probably most apparent when the narrator looks into Bartleby’s face after he refused to work anymore:

I looked at him steadfastly. His face was leanly composed; his gray eye dimly calm. Not a wrinkle of agitation rippled him. Had there been the least uneasiness, anger, impatience or impertinence in his manner; in other words, had there been any thing ordinarily human about him, doubtless I should have as soon violently dismissed him from the premises. But as it was, I should have as soon thought of turning my pale plaster-of-paris bust of Cicero out of doors. (Melville 101)

He is like a statue, a “pale plaster-of-paris bust of Cicero,” yet as the narrator confesses, “had there been anything ordinarily human about him,” he would have been dismissed at once. This reveals a pressing ambivalence in the narrator’s storytelling enterprise. He intended to give a face and a voice to people (“the law-copyists or scriveners”) who have never been represented in literature: the performance of prosopopeia would humanize this unseen class of people towards whom he feels responsible, in accordance with Kuebrich’s call for “an initial, minimal step” requiring “the lawyer stop treating Bartleby as a commodity and recognize him as a fellow human being.” (Kuebrich 401) Yet if he humanizes Bartleby (the ethical act par excellence), he paradoxically sets himself a pretext for dismissing him at once.

It is very interesting to ponder whether the one final “biographical rumor” the narrator hears about Bartleby helps in understanding him:

There would seem little need for proceeding further in this history. Imagination will readily supply the meager recital of poor Bartleby’s internment. But ere parting with the reader, let me say, that if this little narrative has sufficiently interested him, to awaken curiosity as to who Bartleby was, and what manner of life he led prior to the present narrator’s making his acquaintance, I can only reply, that in such curiosity I fully share, but am wholly unable to gratify it. (Melville 131)

Bartleby’s interruption of the mimetic structure of the law/logos/sense as well as his unreadability proves that rational/legal understanding is insufficient to account for his enigmatic behavior. The story thus evokes literature as a mode of discourse, which, through the literary imagination, might be able to give a proper answer to the pressing question: “who is he?” However in the final reading literature is “wholly unable to gratify” this question, and it has to (re)turn to the biographical, which only exists as an unconfirmed rumor:

Yet here I hardly know whether I should divulge one little item of rumor, which came to my ear a few months after the scrivener’s decease. Upon what basis it rested, I could never ascertain; and hence, how true it is I cannot now tell. But inasmuch as this vague report has not been without certain strange suggestive interest to me, however sad, it may prove the same with some others; and so I will briefly mention it. The report was this: that Bartleby had been a subordinate clerk in the Dead Letter Office at Washington, from which he had been suddenly removed by a change in the administration. When I think over this rumor, I cannot adequately express the emotions which seize me. Dead letters! does it not sound like dead men? Conceive a man by nature and misfortune prone to a pallid hopelessness, can any business seem more fitted to heighten it than that of continually handling these dead letters, and assorting them for the flames? For by the cart-load they are annually burned. Sometimes from out the folded paper the pale clerk takes a ring—the finger it was meant for, perhaps, moulders in the grave; a bank-note sent in swiftest charity—he whom it would relieve, nor eats nor hungers any more; pardon for those who died despairing; hope for those who died unhoping; good tidings for those who died stifled by unrelieved calamities. On errands of life, these letters speed to death.
Ah Bartleby! Ah humanity! (Melville 131)

The epistemological status of the rumor is highly dubious, yet it is infinitely suggestive (cf Miller 158). These “dead letters,” which, in the narrator’s enumerated examples, all testify to individual tragedies, are in striking contrast to the “letters of the law,” the abstract documents regulating legal personhood. Even if they “speed to death” after missing their real destination, they escape the mimetic system of logos based on copying. They speak from beyond the grave, reminding the narrator of ethical responsibilities he owes to the dead and the dispossessed. The final question is: can he heed their call?

Conclusion

In my reading, Melville’s masterpiece shows the title character as a person thoroughly defined (and crippled) by the notions of legal personhood based on property and negotiated by the slippage between common law and equity law. Bartleby’s cessation of copying comes to obstruct the law, which is contingent upon the mimetic reproduction of logos. Because of his inscrutability, he becomes a figure for unreadability that escapes legal definition; yet he is taken to prison based on a “legal fiction.” This forcible act leaves behind a residue of guilt in the narrator that can only be redeemed through literature, which, as a “history of the oppressed,” emerges as a supplement to the cold and rational discourse of the law. However, even the literary imagination is unable to exonerate the guilt it originates from, as its master trope, prosopopeia, seems to exhibit the same aberrant structure that governed legal discourse in the first place. In the end, neither legal discourse, nor its supplement, literature can solve the central enigma of the text, and do justice to Bartleby, constituting one of the most profound insights of Melville’s prose. An insight, which—together with his “disgruntlement with the demands of the literary marketplace” the short story can also be an allegory of (Jay 24, cf. Thomas “Legal” 38-39)—nevertheless, condemned Melville to silence. As Cohen argues,

In a sense what makes “Bartleby” unique may be that it seems to be “about” the cessation of writing (as copying), like a black-hole in the continuum of literary history. […] It is common to remark that after this text in his own scripto-biography Melville ceased writing prose during the long lyrical hiatus ending only with “Billy Budd.”⁷ (Cohen 152-153)

Johnson suggests that the lyric, with its central figures of apostrophe, prosopopeia, anthropomorphism and personification, is “by nature working against a decline of humanness and a thingification that go on all the time and have only accelerated with commodity capitalism” (Johnson Persons 23) that “Bartleby the Scrivener” is the harrowing representation of. Even though the short story was suspicious of the performance of prosopopeia, by turning to lyric Melville was momentarily able to forget the insights into the rhetoric of law and literature provided by the narrative. But the very fact that Billy Budd exists suggests that the questions of law and literature continued to haunt him as much as the various texts written in response to “Bartleby the Scrivener.”

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• Smith, Herbert F. 1965. “Melville’s Master in Chancery and his Recalcitrant Clerk.” American Quarterly 17.4: 734-741.
• Thomas, Brook. 1990. Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe and Melville. Cambridge: Cambridge UP.
• - – -. 1984. “The Legal Fictions of Herman Melville and Lemuel Shaw.” Critical Inquiry 11.1: 24-51.
• West, Robin. 1996. “Invisible Victims: A Comparison of Susan Glaspell’s »Jury of Her Peers,« and Herman Melville’s »Bartleby the Scrivener.«” Cardozo Studies in Law and Literature 8.1: 203-249.
• Zlogar, Richard J. 1999. “Body Politics in »Bartleby«: Leprosy, Healing, and Christ-ness in Melville’s »Story of Wall-Street.«” Nineteenth-Century Literature 53.4: 505-529.

Notes

¹ Webster’s Dictionary lists the following meanings for avocation: ‘diversion,’ ‘distraction’ (this usage is glossed as archaic); ‘vocation’; ‘hobby,’ and links the etymological root of the word to the Latin vox, voice. ↩

² Cathy Caruth argues that “Against the background of the reduced notion of property as mere possession, Balzac’s Derville thus resuscitates, with Chabert, the sense in which the Declaration of the Rights of Man and Citizen, rather than recognizing the human through his property, precisely constituted the subject as proprietor, as the one who is recognized through his very right to claim.” (Caruth “Claims” 432) David Kuebrich also argues how the radical working class spokesmen of the age, Thomas Skidmore “called for an immediate and equal redistribution of property, argued that the Declaration of Independence had failed to articulate a crucial unalienable human right. All citizens were entitled to property, Skidmore declared, »not because they had a certain being for a parent … not because of purchase, of conquest, of preoccupancy, or what not; but BECAUSE THEY ARE; BECAUSE THEY EXIST. I AM; THEREFORE IS PROPERTY MINE.«” (Kuebrich 388) ↩

³ Examining the political context of the story, Jay situates the short story at a time of transition “from a feudal mode of economic production to a capitalist one” (Jay 20), while Kuebrich’s argues that “by 1850 Melville was well aware of the tensions, political struggles, and ideological discourse that characterized relations between New York workers and their employers.” (Kuebrich 384) He warns, though, that “An awareness of the many correlations between »Bartleby« and current social conditions and debates does not in itself explain the mysteries of the story, but it does make a strong prima facie case for viewing it as an historicized text more concerned with then-contemporary economic realities than is usually acknowledged. But this is not to suggest that the author of »Bartleby« is a social or socialist realist. The story’s primary concern is not to expose underlying economic structures, mirror the midcentury New York workplace, or advance a particular ideology. Rather, Melville practices what might be termed a »short-hand realism« that assumes or merely intimates the existence of certain economic conditions so that he can concentrate on his chief interest, which is to disclose the underlying ideological assumptions (that is, the largely unconscious modes of thought and behavior) these new conditions engender.” (Kuebrich 388-389) ↩

⁴ Johannes Dietrich Bergmann suggests that Melville’s idea of the story might have come from James A. Maitland’s The Lawyer’s Story; Or, The Wrongs of the Orphans. By a Member of the Bar, a novel which shows considerable similarities to the short story, for example in the way they introduce their main characters (Bergmann 433). ↩

⁵ However, I would not go as far as Jay, to claim that “Bartleby allegorizes a Derridean solicitation of the law […]. Bartleby occupies the very premises of the law, disobediently. He refuses the social contract, disbands the state by withdrawing his signature from its constitution. In this he takes seriously both Jefferson’s and Thoreau’s thesis that the state originates in the individual’s economic choice to trade part of his freedom for the benefits that political association brings.” (Jay 22) ↩

⁶ Or we could say “paternal melancholy,” too: Brook Thomas argues that “A number of critics have speculated that the lawyer/narrator in »Bartleby« manifests attributes of Judge Shaw and that the relationship between the lawyer and Bartleby is Melville’s comment on the relationship between himself and his socially superior father-in-law.” (Thomas “Legal” 34. Cf. Jay 21 and Randall 89) ↩

⁷ In fact, it was only after the publication of The Confidence-Man (1857) that Melville turned to poetry. That novel was profoundly concerned, in Levine’s view, with “the tendencies of letters, characters, and tautologies to block and occlude meaning. Melville’s increasing interest in the page, Elizabeth Renker posits, made his move to poetry after the publication of The Confidence-Man all but inevitable.” (Levine, ed. 8) Lawrence Buell also concludes that “The reflexive, fabulizing style of The Confidence-Man (1857), Melville’s last published work of prose fiction, shows a sensibility pushing at the outer limits of the genre and ready to exchange it for another form that the persona can dominate more fully—that is, either poetry or nonfictional prose. Melville tried both. If there is a mystery about the turn at the point in Melville’s career, it is not that he ceased to write prose narrative (except for the posthumously published Billy Budd), but that he chose poetry over the essay,” which would have been “a much more logical next step in Melville’s development.” (Buell 135) ↩