“A New Race Has Sprung Up”:

Prudence, Social Consensus and the Law in

“Bartleby the Scrivener”
JOHN MATTESON
John Jay College, CUNY

Tradition cannot mean standing still.

T. S. Eliot

I
n his 1849 essay “Resistance to Civil Government,” popularly known as
“Civil Disobedience,” Henry David Thoreau offered an equivocal assess-
ment of Daniel Webster, whose abilities he admired but whom he saw
as tragically limited by his allegiance to legal and governmental institutions.
Thoreau “thank[ed] Heaven for” the senator and believed that, compared
with the cheaper wisdom of politicians as a class, Webster’s were “almost
the only sensible and valuable words.” However, he lamented that Webster’s
training as a lawyer necessarily made him too narrowly practical to raise his
thoughts beyond policy and expediency. “His quality,” he complained, “is not
wisdom, but prudence. The lawyer’s truth is not Truth, but consistency, or
a consistent expediency. Truth is always in harmony with herself, and is not
concerned chiefly to reveal the justice that may consist with wrong-doing.”1
According to Thoreau, prudence was a quintessentially lawyerly virtue, nicely
adapted to managing the worldly affairs of a given moment but deficient as a
philosophical value because it provided no means of arriving at Truth with a
capital “T.” But Thoreau also suggested another, more practical deficiency in
prudence, namely, that life presents crises that cannot be put to rest by policy
and expediency. Existence raises moral problems that a person guided only by
prudence will lack the determination and moral force to resolve. Thoreau saw
in Webster’s attitude a flaw typical of persons guided by prudence: prudent
people, in their quest for stability, will seek to preserve the terms of the
social compact to which they are accustomed, even when that compact is
demonstrably corrupt. It was vain to “speak of moving society,” Thoreau
warned, when one had “no resting-place without it” (Thoreau 222).

C 2008 The Authors

Journal compilation

C 2008 The Melville Society and Blackwell Publishing Inc

1Henry David Thoreau, “Civil Disobedience,” Collected Essays and Poems (New York: Library of
America, 2001), 222; hereafter cited as Thoreau.

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Despite Thoreau’s misgivings, prudence as a value held considerable

appeal among Americans in the 1840s and 1850s, who were increasingly be-
wildered by the political polarization taking place around them. The consensus
among white Americans that had once rested upon a common ethnic and
religious heritage was weakening; to fill its void, the culture was struggling
to find some alternative system of values upon which to construct a shared
ethical vision. For this reason, “prudence” became a key word in the political
and philosophical discourse in the decades that preceded the Civil War. In this
period, prudence was the eponymous subject of an underappreciated essay
by Emerson, and it became a commonplace in the speeches of Webster. In
the writings of leading abolitionists, calls for prudence were rejected as overly
timid responses to a social calamity. And in works like Moby-Dick, Pierre, and
The Piazza Tales, prudence was subjected to the searching scrutiny of Herman
Melville.
Melville’s most significant meditations on prudence took place only
a few years after Thoreau’s Civil Disobedience. However, whereas Thoreau
saved his most withering salvos for the vacillations of the federal government,
Melville’s critiques of prudence dealt with conflicts both private and public.
Along with Thoreau and Webster, Melville pondered the ethical basis upon
which a republic might sustain itself, asking whether, on a personal level,
carefulness and reasonableness were admirable virtues or perversely damning
vices. But Melville’s meditation on prudence derived its contours from its his-
torical context. Interestingly, much of that context was supplied by the judicial
writings of his father-in-law, Massachusetts Chief Justice Lemuel Shaw. In
his opinion in Brown v. Kendall, perhaps the most famous torts case decided
in nineteenth-century America, Shaw elevated prudence to a legally required
standard of conduct.
Brown v. Kendall remains a staple of first-year torts classes because it
provided for the first time a concise description of the conditions that con-
stitute negligence. It remains an important document in American economic
history because, by making it harder for plaintiffs to win tort cases, it in effect
created a legal subsidy for industrial expansion. As a cultural document, the
case also reflects many of the tensions that arose as a rapidly changing society
labored to define the dimensions of public morality in a young democracy.
The story behind Brown v. Kendall reveals the increasingly important role of
prudence in antebellum discourses about public virtue. During the Jacksonian
era, the underpinnings of American society became less theocratic. As they
did so, judges like Shaw, for whom the law represented the moral sense
of society, looked for alternative principles to serve as a basis for public

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and personal ethics. In this search, prudence was a chief value to which
they turned. But just as Shaw was advancing reasonableness as a ground
for social and legal consensus, a rising generation of legal professionals was
coming to regard the law, not as a means of communicating moral values or
producing reasonable outcomes, but as a collection of ethically neutral rules
that one could manipulate to one’s personal advantage. In Melville’s “Bartleby
the Scrivener,” these conflicting views powerfully coalesce. The narrator-
lawyer, in the fashion of Shaw, struggles to decide whether his ethics will
be governed by worldly prudence or Christian agape. Bartleby, the immobile
scrivener, fails to grasp that law and society will no longer side with a pas-
sive person against an economically active one. And behind these conflicts
stands a new breed of coolly utilitarian men who find little fascination in
ethical debates and see Bartleby, not as a moral enigma, but merely as a
dispensable impediment to profit-making. Melville’s story not only questions
prudence as a culturally sustaining virtue, but also depicts a legal profession
whose moral authority is being weakened by elderly indecision and youthful
opportunism.

Tocqueville, Shaw, and the Twilight of Christian Consensus

I
n the 1830s, Alexis de Tocqueville set out to determine the causes and
institutions that kept the American democracy from dissolving into bitter
factionalism. He concluded in Democracy in America that one of the
society’s principal sources of cohesion was an almost universal acceptance of
Christianity. Although Tocqueville praised the formal separation of church and
state in America, he argued that religion exerted a powerful and, he believed,
indispensable influence on American political consensus. Although the society
had no profound interest in the truth or falsity of any given set of Christian
beliefs, Tocqueville maintained that the general climate of belief in the United
States supplied necessary structure and restraint to the otherwise potentially
chaotic political life of the nation:

Christianity . . . reigns without obstacle, by universal consent; the

consequence is . . . that every principle of the moral world is fixed and
determinate, although the political world is abandoned to the debates
and the experiments of men. Thus the human mind is never left to
wander over a boundless field; and whatever may be its pretensions,
it is checked from time to time by barriers that it cannot surmount.
Before it can innovate, certain primary principles are laid down, and

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the boldest conceptions are subjected to certain forms which retard

and stop their completion.2

Tocqueville thought this religiously inspired habit of restraint was “singu-

larly favorable both to the tranquillity of the people and to the durability of
the institutions they have established.” Although religion played no direct
role in American politics, he regarded it as “the first of their political in-
stitutions” (Tocqueville 1.305) and thereby identified a remarkable paradox:
although Americans appeared to take pride in the separation of church and
state, a Christian consensus made the harmonious conduct of public affairs
possible.
While Tocqueville was touring America, the country’s judiciary was still
dominated by holdovers from the Federalist era. These judges, more inclined
than their eventual successors to commingle theological and juristic thinking,
generally shared Tocqueville’s belief in the necessity of a religiously based
moral consensus. Tocqueville himself alluded to a contemporary trial in New
York State in which a witness was refused the right to testify because he
denied the existence of God and the immortality of the soul (1.306). However,
the difficulties of preserving this consensus through the force of law raised
a daunting question: how was a secular democracy to affirm a religious moral
foundation without intruding unconstitutionally on freedom of conscience? At
virtually the same moment when Tocqueville was praising America’s Christian
consensus, that consensus was being eroded by its inherent contradictions.
The conflict was especially clear when, as happened a number of times
before 1840, state courts were asked to weigh the constitutionality of laws
against blasphemy. The courts tended generally to follow Tocqueville’s anal-
ysis. While declining to address the issue of whether Christian beliefs were
true, they nevertheless routinely treated malicious attacks on Christianity as
illegal breaches of the social order. Curiously, they were forced to act as if
blasphemy were a non-religious issue. When, for instance, the Superior Court
of Delaware upheld the blasphemy conviction of Thomas Jefferson Chandler
in 1837, it described blasphemy as an “offence against man, whose peace and
safety [are] endangered by such conduct. Whether the belief . . . was well or
ill formed is not the question.” The court added, “The only legitimate end
of [a blasphemy] prosecution is to preserve the public peace.”3 Similarly, the
Pennsylvania Supreme Court asserted that “it is the open, public vilification
of the religion of the country that is punished, not to force conscience by

2Alexis de Tocqueville, Democracy in America, 2 vols. (New York: Knopf, 1987), 1.304–5;
hereafter cited as Tocqueville.
3 State v. Chandler, 2 Harrington (Del.) 553, 557 (1837).

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punishment, but to preserve the peace of the country, by an outward respect

to the religion of the country, and not as a restraint upon the liberty of
conscience; but licentiousness endangering the public peace, when tending
to corrupt society, is considered as a breach of the peace, and punishable by
indictment.”4 In the leading case of People v. Ruggles, the highly respected
New York jurist Chancellor Kent also insisted that the blasphemy laws were
not meant to compel belief, but that blasphemous statements were punishable
“because they strike at the root of moral obligation, and weaken the security
of social ties.” Such offenses, Kent declared, “have always been considered
independent of any religious establishment or the rights of the church. They
are treated as affecting the essential interests of civil society.”5
It fell to Lemuel Shaw to preside over the most notorious blasphemy case
of the century and to utter a dernier cri of theistic legal thinking in America. In
1838, Shaw became the last judge in Massachusetts ever to uphold a conviction
for blasphemy and apparently the last to do so in America for more than
eighty years.6 The blasphemer was Abner Kneeland, who had been convicted
because his newspaper, The Boston Investigator, had published three articles
that rudely disparaged the Immaculate Conception, lampooned the practice of
prayer, and claimed that Christian religious teachings contained no more truth
than Greek mythology. However, unlike any of the other indicted blasphemers
of his generation, who had shouted their impieties in heated moments of
indiscretion, Kneeland acted with premeditation, and his blasphemies had
been printed to reach as wide an audience as possible. More importantly from
a legal standpoint, Kneeland had differed in the content of his expression. The
writings that appeared in the Investigator were not intemperate, inflammatory,
or profane. Just a year before Kneeland, Thomas Chandler had called Mary a
whore and Jesus a bastard. In contrast, the passage for which Kneeland had
been convicted was a calmly worded statement of his personal differences with
the Universalist church.7 The language was not in itself offensive; evidently, it
was the ideas that were on trial.
4 Updegraph v. Commonwealth, 11 Sergeant & Rawles (Pa.) 399 (1824). In legal citations, the first
number refers to the volume of the series usually designated by either a jurisdiction (“Mass.” for
Massachusetts), the name of the court (“U.S.” for United States Supreme Court), or the name of
the clerk who prepared the volume (“Harrington,” “Cushing,” etc.). The first page number is the
page on which the case report begins. A second number is the page from which the quotation
paraphrasis is taken.
5 People v. Ruggles, 8 Johnson (N.Y.) 290, 296, 294.
6 The next recorded instance of such a case is State v. Mockus, 120 Maine 84 (1921).
7 The text of Kneeland’s disavowals, as set forth in his indictment, read as follows:
1. Universalists believe in a god which I do not; but believe that their god, with all his moral
attributes (aside from nature itself) is nothing more than a mere chimera of their own
imagination.

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In affirming Kneeland’s blasphemy conviction, Chief Justice Shaw said

little that had not already been stated in the New York, Pennsylvania, and
Delaware courts. He, too, held that the law in question existed, not to police the
religious thinking of the individual, but to preserve consensus on a wider scale.
Shaw wrote that no conviction for blasphemy could stand unless the defendant
had acted “with an impious purpose . . . to alienate the minds of others from
the love and reverence of God” (20 Pick. at 213). To further emphasize the
point, Shaw added that blasphemy “is a wilful and malicious attempt to lessen
men’s reverence for God . . . and to prevent their having confidence in him”
(20 Pick. at 213). This emphasis on the minds of others was nowhere to be
found in either of the Massachusetts statutes Shaw was interpreting. However,
the Chief Justice was adamant: blasphemy was a crime against the social
compact and the public awareness:
[U]nderstanding the statute as we do . . . [we find] that it is not
intended to prevent or restrain the formation of any opinions or
the profession of any religious sentiments whatever, but to restrain
and punish acts which have a tendency to disturb the public peace.
(20 Pick. at 221)
As such, the law was, in Shaw’s view, “essential to the peace and safety of
society” (20 Pick. at 221). As Tocqueville might have predicted, Shaw claimed
to be concerned not at all with what Kneeland believed. Shaw wanted his
readers to understand that it was for social reasons, not theological ones, that
Kneeland must spend two months in jail.
The problem was that, although Shaw claimed to be maintaining a
distinction between protecting public morals and intruding on personal con-
science, he had actually erased that distinction, or, worse, unwittingly shown
that the distinction could not be preserved. Kneeland’s litany of unbelief is not
maliciously worded. Nothing in its unpopular opinions shocks the conscience.
How, then, under Shaw’s own logic, could Kneeland have been guilty? Chief
Justice Shaw was a master at eliciting agreement from his fellow justices; on his

2. Universalists believe in Christ, which I do not; but believe that the whole story concerning
him is as much a fable and a fiction as that of the god Prometheus, the tragedy of whose
death is said to have been acted on the stage in the theatre at Athens, five hundred years
before the Christian era.
3. Universalists believe in miracles, which I do not; but believe that every pretension to them
can be accounted for on natural principles, or else is to be attributed to mere trick or
imposture.
4. Universalists believe in the resurrection of the dead, in immortality and eternal life, which
I do not; but believe that all life is mortal, that death is an eternal extinction of life to the
individual who possesses it, and that no individual life is, ever was, or ever will be eternal.
See Commonwealth v. Kneeland, 37 Massachusetts, (20 Pickering) 207 (1838); hereafter cited as 20
Pick.

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court, dissenting opinions were almost unheard of. Indeed, during the entire
term of court when Kneeland was decided, only one dissent was filed. But that
dissent came in the Kneeland case. In the one action whose issues went to
the heart of social consensus, no unanimous consensus could be reached. The
dissenting judge, a Jacksonian Democrat named Marcus Morton, conceded that
no citizen was entitled to “wound the feelings or shock the decency of others
. . . by spreading malicious falsehoods” (20 Pick. at 237). Nevertheless, Morton
refused to grant that popular consensus about religion was so fragile that it
required the police to prop it up. The truths of Christianity, he wrote, “are
too deeply rooted and have too strong a foundation, to need or admit of the
fallacious and dangerous aid of human legislation” (20 Pick. at 236). Moreover,
given the facts of the case, Morton was not at all persuaded that Shaw was really
concerned about public safety and morals. Rather, he saw the majority opinion
as an attempt “to control or dictate the belief of individuals,” and he declared
that any such attempt “is so impracticable, so perfectly futile, as to show at
once, how entirely above all civil authority are the operations of the human
mind” (20 Pick. at 236).
The more telling reaction to Shaw’s opinion, however, came from be-
yond his own bench, as liberal Boston intellectuals rose as one against the
Kneeland decision. Unitarian minister William Ellery Channing composed a
petition to the governor, signed by Ralph Waldo Emerson, Bronson Alcott,
George Ripley, and others, demanding clemency for Kneeland and denouncing
the logic by which his conviction had been upheld. But neither Morton’s
dissent nor Channing’s petition was responsible for the fact that, after Knee-
land, the Massachusetts blasphemy law became a dead letter. More crucial was
the fact that the religion-based consensus that Tocqueville extolled and Shaw
defended was less monolithic and robust than presumed. Where was consensus
to be found, for instance, between the abolitionist Christians in the North and
the slave-holding Christians of Charleston? Who could distill social harmony
from the bitter anti-Catholic agitations that had already erupted savagely in
the burning of the Ursuline convent near Boston and would eventually find
organized expression in the Know-Nothing Party? And how long could one
speak of Christian consensus in a nation where the Jewish population was
growing from an estimated 3500 in 1820 to approximately 150,000 in 1860?8
The heated quarrels between Boston Congregationalists and Unitarians were
themselves sufficient evidence that Americans who sought consensus on the
basis of religious opinion would be wise to look elsewhere.

8Howard M. Sachar, A History of Jews in America (New York: Knopf, 1992), 41; Bertram Korn,
American Jewry and the Civil War (Philadelphia: Jewish Publication Society of America, 1981), 1.

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Not only was the diversity of American ethnicity and opinion proving
Tocqueville’s consensus to be a fiction, but also the legal means of holding
the alleged consensus in place, the charge of blasphemy, was an unwieldy and
easily misdirected weapon. In 1838, there may have been many who thought
a free-thinking radical like Abner Kneeland deserved prison, but the Kneeland
case, despite taking more than four years to prosecute, had resulted only in a
two-month sentence and a great deal of free publicity for the defendant. The
affair had hardly been a judicious use of public resources. Moreover, during
this period, highly public accusations of blasphemy (though no court proceed-
ings) were being directed at Emerson and Alcott, thinkers whom Shaw himself
respected and, in the case of Alcott, to whom he had even given financial
support. In 1838, the year of the Kneeland opinion, Emerson was banned from
Harvard following his address to the graduating class of the Harvard Divinity
School. The year before, Alcott, whose school at the Masonic Temple had
been funded in part by a contribution from Shaw, had endured threats of mob
violence in response to his allegedly blasphemous Conversations on the Gospels.
To remain consistent, Shaw would have had to find a definition of blasphemy
that would place Kneeland outside the law while leaving Emerson’s Divinity
School Address within it. Such a feat was beyond even Shaw’s considerable
powers. If American society needed a core of shared ideas around which to
build consensus, those ideas would be better taken from another source. There
is no evidence that Chief Justice Shaw ever looked back on the Kneeland case as
wrongly decided. Nevertheless, it is clear that, after Kneeland, he continued his
search for a philosophical common ground upon which law could firmly rest.
In 1850, in the case of Brown v. Kendall, Shaw sought to establish a new ground
for consensus, not in religion, but in reason and prudence. The ramifications
of this new consensus, however, were to be as much economic as ethical, and
the latent contradictions in Shaw’s thinking were to fuel the moral debate at
the heart of Melville’s “Bartleby the Scrivener.”

Brown v. Kendall and the Triumph of Prudence

O
n an otherwise unremembered day near the midpoint of the nine-
teenth century, two men who had perhaps never seen each other
before—George Brown and George K. Kendall—were out walking
their dogs. Somewhere during their respective strolls, they crossed paths.
When the two men’s dogs saw each other, they lunged together and began
to fight. As fangs flashed and fur flew, Kendall, who was trying to separate
the animals and prevent them from harming each other, lashed at them with
a large stick. On one of his backswings, however, Kendall inadvertently drove
the tip of the stick into the eye of Brown, who recoiled in pain; his eye had

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been seriously injured. Brown sued for redress, and his court action was to
become the subject of one of the best-known judicial opinions in the history of
American tort law. The focus of the case, which was appealed to the Supreme
Judicial Court of Massachusetts, was the question of the defendant Kendall’s
intent and the standard by which it was to be judged. The technical term for
Brown’s lawsuit was an “action in trespass.” Although people usually think
of trespass as an intrusion on someone’s land, in law the word has a broader
meaning, which includes direct applications of force to another person’s body.
Brown would have preferred to have the court decide his case according to
a standard of fault known as “strict liability.” Under this highly pro-plaintiff
standard, Brown would not have to prove anything at all about Kendall’s intent.
According to strict liability, even if Kendall had behaved with good motives and
the utmost of care, he would still be liable; the mere fact that his action had
caused Brown’s injury would suffice.
Writing for the court, Shaw applied a standard of fault that made it
far easier for Kendall to escape liability. He held that, so long as Kendall
had not violated any laws, he could not be liable unless he had failed to act
reasonably, in other words, unless he had failed to exercise ordinary prudence.
Significantly, in positing a standard of reasonableness, Shaw made it clear that
“what constitutes ordinary care will vary with the circumstances of cases.”9 For
instance, “a man who should have occasion to discharge a gun, on an open and
extensive marsh, or in a forest, would be required to use less circumspection
and care, than if he were to do the same thing in an inhabited town, village,
or city” (6 Cushing at 295). The reasonableness envisioned in the opinion was
not absolute and unchanging, but contingent. It involved no presuppositions
as to immutable truths but instead demanded pragmatic calculations based on
particular facts in a particular place at a particular moment. Announced by
the most powerful judge in one of the country’s most influential jurisdictions,
Shaw’s “reasonable man” or “prudent person” rule became the accepted stan-
dard for most cases involving accidental harm.
More than any other case, Brown v. Kendall has come to typify the rise
of negligence as a legal principle in the middle of the nineteenth century. In
recent times, legal historians on the political left have often analyzed the rise
of the negligence doctrine in America from an economic perspective. In its
simplest form, the argument states that judges of the period were eager to
promote the growth of industry and therefore adopted rules of decision and
standards of liability that favored robust commercial activity. Prior to the rise
of the negligence doctrine, cases involving direct inflictions of personal injury
9Brown v. Kendall, 60 Massachusetts (6 Cushing) 292, 295 (Mass. 1850); hereafter cited as 6
Cushing.

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had more often been decided according to the rule of strict liability. Under
that rule, the defendants were responsible for injuries caused by their actions,
regardless of their intent or the amount of care they had used. According to
some modern legal theorists, this doctrine inhibited economic growth: since
strict liability punished one for being active, then the risk-averse person or
company would tend toward inactivity, or at least toward extreme caution.
Under the rule of negligence, however, business and industrial entities were
free to act more vigorously; they were immune from liability unless a plaintiff
could show they acted without reasonable care. Thus, cases like Brown have
been seen as tacitly subsidizing industrial expansion.
There is perhaps another explanation for the rise of prudence as a key
value in American law. As Thoreau points out in his critique of Webster,
prudence is a peculiarly lawyerly virtue. The profession itself, at least up to
the middle of the nineteenth century, was regarded as a bastion of caution
and social conservatism. The year before Brown v. Kendall, one commentator
on professional life in America observed, “The lawyer has entrusted to him
the social life of man. This is his function, to preserve the social life in
security and soundness.”10 Representatives of a class that had much to lose
in times of uncertainty and upheaval, lawyers and judges were careful men,
both by upbringing and by personal interest. Not surprisingly, this carefulness
eventually found expression in the legal rules they articulated. The genius of
Brown v. Kendall, however, is that it manages to be both a socially conservative
and an economically progressive document. By enshrining prudence and rea-
sonableness as legal standards, Shaw offered both values as rallying points for
social consensus to an increasingly fragmented society. At the same time, by
increasing the burden of proof for plaintiffs in tort cases, Shaw made it possible
for the economically aggressive to move forward with less fear of liability. The
idea of the prudent person as a legal standard responded both to the need for
social stability and the imperatives of economic growth.
Legal scholars have disagreed over the actual importance of Brown v.
Kendall as a precedent. Oliver Wendell Holmes saw the opinion as a bold
and virtually unprecedented rewriting of the rules of liability, and Charles O.
Gregory gives Shaw “most of the credit for the establishment of a consistent
theory of unintentionally caused harm.” However, some more recent com-
mentators have tended to see Shaw’s opinion as marking the culmination,
rather than the inception, of the trend toward negligence-based liability.11
10 Henry N. Day, The Professions [1849], as qtd. in Perry Miller, The Life of the Mind in America
from the Revolution to the Civil War (New York: Harcourt, Brace, 1965), 207.
11Oliver W. Holmes, Jr., The Common Law (Boston: Little, Brown and Co., 1881), 105; Charles
O. Gregory, “Trespass to Negligence to Absolute Liability,” Virginia Law Review 37: 359, 365.

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Whether or not Shaw’s opinion in Brown in fact broke new ground in the
field of negligence, the case does reflect that the law was moving toward
more rationalistic and relativistic standards for regulating conduct. In contrast
with his assumption in Kneeland that it was essential for society to affirm the
governance of the Christian God, Shaw proposed in Brown a doctrine that
saw the world as governed by forces neither fixed nor entirely orderly, neither
inherently good nor evil. Shaw was not so much abandoning the earlier idea
of law as redefining the concept of law to allow for flexibility and pragmatic
adjudications. A year after Brown, at a dinner given at Harvard Law School,
Shaw articulated his position with sensitivity and balance:
The true view of the science of law is to regard it as founded on a just
view of natural right and natural justice, adapted and fitted to become
a system of practical rules by reason and experience.12

Shaw’s vision of law carefully blends the eternal and the everyday. The prin-
ciples of the law bear the sanctity of nature and innate morality; however, the
duties they enjoin can be determined only by the actual circumstances.
But if the Brown opinion demanded juries to take a flexible view of
circumstances, it exacted considerably more uniformity as to the state of mind
to be required of the defendant, and its standards required a certain displace-
ment of self. When he used a stick to separate fighting dogs, George Kendall
was required to make choices, not from his own perspective of right and
wrong, but rather from the viewpoint of the idealized or symbolic “reasonable
man.” Ironically, Chief Justice Shaw, who had set out upon life with hopes of
becoming a literary man, exerted one of his most lasting influences on the law
by creating this fictitious character, Shaw’s epitome of ordinary care. Ordinary
care, Shaw writes in Brown, is “that kind and degree of care, which prudent and
cautious men would use, such as is required by the exigency of the case, and
such as is necessary to guard against probable danger” (6 Cushing at 296). That
Shaw’s prudent person is a fiction should be evident from everyday experience;
no one is prudent and cautious all the time. Yet Shaw binds us to an unflagging
moral ideal, requiring us not to respond to our own intuitions of good and evil,
but to put ourselves in the place of a representative ethical being that exists
more in mind than experience. In other words, to remain within the law, we

Writers who have disputed the revolutionary status of Shaw’s opinion in Brown have included
E. F. Roberts, “Negligence: Blackstone to Shaw to ?: An Intellectual Escapade in a Tory Vein,”
Cornell Law Quarterly 50 (1965): 191, 204, and Morton Horwitz, The Transformation of American
Law, 1780–1860 (Cambridge, Massachusetts: Harvard University Press, 1977), 90.
12Lemuel Shaw, “Address to the Story Association,” 15 July 1851, as qtd. in Frederic Hathaway
Chase, Lemuel Shaw, Chief Justice of the Supreme Judicial Court of Massachusetts, 1830–1860
(Boston: Houghton Mifflin, 1918), 245; my emphasis.

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must step outside ourselves, provisionally acquiring a different, unreal moral

identity.
Thus, the opinion in Brown is at the same time pragmatic and idealistic:
what shall be deemed prudent is contingent on outward circumstance, but the
reasonableness to which the inward mind must aspire is the same for everyone.
Shaw seems unconcerned with the possibility that people may have their own
peculiar ideas of reasonableness. His stance is not haunted by the skepticism
that, more than a century later, would prompt Richard Rorty to observe, “Any
seemingly random constellation of . . . things can set the tone of a life. Any such
constellation can set up an unconditional commandment to whose service a life
may be devoted—a commandment no less unconditional because it may be
intelligible to, at most, only one person.”13 In Brown, the very real possibility
that reasonable people may reason differently about what constitutes reason is
not seen as an impediment.
We turn to law for predictability and order. In positing a fictitious rea-
sonable person whom all real people were expected to emulate, Shaw created a
standard for states of mind and thus promoted both of these values. However,
the Brown opinion did not respond to the very real human appetite for the
irrational. The ability to act unreasonably, at least sometimes, makes us feel
free and alive. However much we may crave regularity in our daily affairs, we
do not wish to be ruled by reason all the time. While the consensus of reason
would seem to be an improvement over the Christian consensus of Kneeland,
some of us might protest that requiring people to live reasonably is no more
realistic or acceptable than commanding them to think piously.
Shaw’s prudent person standard fit perfectly with the needs of a nascent
industrial economy. However, at the same time that Shaw was seeking stan-
dards of behavior on which all persons could agree, Thoreau was proclaiming,
“the greater part of what my neighbors call good I believe in my soul to
be bad” and asserting that, if he regretted anything, it was likely to be his
good behavior.14 While the great judge was writing reasonableness into the
case reports, Emerson was writing “whim” on his door post and, along with
the other New England literati, trying to vindicate a self-legitimating, self-
defining “I.” As Shaw enshrined prudence and rationality, Edgar Allan Poe was
leading his readers into the catacombs of unreason. As the legal culture called
for prudent restraint, the nation’s most radical literary figures championed
subjective assessments of truth and right. Emerson, Whitman, and Melville
13Richard Rorty, Contingency, Irony and Solidarity (Cambridge: Cambridge University Press,
1989), 37.
14 Henry David Thoreau, Walden; or, Life in the Woods, in A Week on the Concord and Merrimack
Rivers, etc. (New York: Library of America, 1985), 331.

36 LEVIATHAN
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required the freedom to explore irrationality for the sake of art, thought, and
democratic culture. Apollonian law contended with Dionysian art, and their
contradictions became a recurrent theme for Melville. Melville’s engagements
with the interactions and conflicts between Christian morality and worldly
prudence span his entire career. Arguably, Moby-Dick turns on Starbuck’s
failed attempts to confine the blasphemous Ahab within the limits of Christian
ethics and secular reasonableness. Moreover, the pivotal philosophical conflict
in Pierre takes place in the space between the “chronological” morality of
heaven and the prudently self-interested “horological” calculations of this
world. However, Melville’s most direct engagements with reason and unreason,
prudence and law, economic progress and personal autonomy take place in
“Bartleby the Scrivener.”

“Bartleby” and Prudence Problematized

S
et primarily in a lawyer’s office and fraught with legal discourse,
Melville’s “Bartleby” is troubled by a conflict between two visions of
law. Introduced to the reader as “a motionless young man” and contin-
ually announcing that he “would prefer not to” perform the routine tasks of
his employment, Bartleby seems best suited for a legal regime of strict liability,
which, as we have seen, tended to reward inactivity and punish those who
pursued their goals more boisterously, whether they were striking dogs or
building railroads. Expressly rejecting the kind of thinking that has given rise
to the standard of the prudent person, Bartleby asserts, “I would prefer not to
be a little reasonable.”15
Sadly for Bartleby, his society has embraced a different principle, one
confidently espoused by his employer, the nameless lawyer-narrator who
proudly commends himself as “an eminently safe man.” He repeats with
pleasure the judgment of his former client John Jacob Astor “in pronouncing
my first grand point to be prudence; my next, method” (NN PT 14). The
lawyer is admirably suited to the rule of reason set forth in Brown; unlike
Bartleby, he acts, but his self-interest guides him to act with carefulness and
circumspection. Under a regime of law that held out fewer rewards for activity
and fewer penalties for standing still, it would be Bartleby, not the lawyer-
narrator, who could most accurately call himself “an eminently safe man.”
But the law as laid down by Chief Justice Shaw disadvantaged those who,
like Bartleby, “like[d] to be stationary” (41). Insofar as it subsidizes economic

15 Herman Melville, “Bartleby, the Scrivener: A Story of Wall-Street,” The Piazza Tales and Other
Prose Pieces, 1839–1860, ed. Harrison Hayford, Hershel Parker, and G. Thomas Tanselle (Evanston
and Chicago: Northwestern University Press and The Newberry Library, 1987), 30; hereafter cited
as NN PT.

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activity, the law of negligence strongly counsels that one take action, lest
one be run down by the juggernaut of progress. In the course of the story,
the economic advantages and disadvantages created by the law of negligence
play themselves out predictably: the static, unreasonable Bartleby descends
first into unemployment, then into prison, and at last to starvation, while the
prudently active lawyer outwardly continues in his quiet, worldly prosperity.
Less predictable, however, is the resulting ethical crisis experienced by the
lawyer, who finds that a reasonable life contains unforeseen hazards to one’s
moral and emotional being.
Bartleby’s doom seems inevitable, and inevitable it is, because the law
cannot protect the rights of the active and the inactive at the same time. For one
to flourish, the other must fail. Indeed, one of the anxiety-producing subtexts
of “Bartleby” is its recognition that legal rules, even those as apparently neutral
as the law of prudence, inevitably favor some people at the expense of others.
Logically, the freedom to act ought to include the freedom not to act, but
Bartleby’s exercise of the latter assures his ruin. Melville represents Bartleby’s
conduct—or absence thereof—as legally innocent. The lawyer admits that
Bartleby is guilty neither of vagrancy nor of lacking visible means of sup-
port, and he is disturbed when he realizes that he cannot argue Bartleby’s
peculiarities into constituting a crime. But although Bartleby does not violate
the criminal law, the law of reasonableness and laissez-faire has created an
economic climate that gives his motionlessness the effect of a capital offense.
The law of prudence and the increased activity that it sanctions pose a fatal
threat to the static Bartleby, a threat succinctly and ominously phrased by his
employer: “Either you must do something, or something must be done to you”
(NN PT 41).
Bartleby, however, is only the more obvious victim of the cultural
enshrinement of prudent activity. Although the narrator prides himself upon
his own safe conformity with the dictates of prudence, his life is not free from
potentially destructive contradictions. In America in 1853, when “Bartleby”
was published, the definition of safety was becoming more complicated. Cer-
tainly, under the law of prudence, those who chose to remain stationary were
finding that they had fewer rights against those who chose motion, but the
new law made it unclear who could count themselves safe. While action was
now perhaps better than inaction, the question remained, how was one to act?
The rule of negligence called for prudence, but, as Shaw made clear, the word
prudence lacks objective content. It is contingent upon factual circumstance
and the opinion of the public, or of a jury, to give it meaning. The command
that one should act prudently did not prescribe a set course of conduct. At its
narrowest, it meant only that one be respectful of society’s judgments, even

38 LEVIATHAN
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when those judgments were ethically repugnant. In Brown v. Kendall, Shaw

appeared to have performed the trick of using prudence and reason both to
bolster traditional social values and to accommodate a radically new economic
ethos. In “Bartleby,” however, Melville illustrates that the logic of carefulness
and the imperatives of the marketplace were pulling in opposite directions and
that prudence had two irreconcilable meanings. Melville’s prudent narrator
desperately wishes to be seen as a genial upholder of humane values. He
takes considerable trouble to accommodate Turkey and Nippers, his other two
emotionally unbalanced scriveners, trying to dovetail their eccentricities into
“a good natural arrangement” (NN PT 18). Nevertheless, the lawyer’s efforts to
ease the frictions of the workplace—to preserve “naturalness” in a manifestly
unnatural place—cannot entirely shield Turkey and Nippers from the soul-
eroding tedium of the work that he exacts from them. At best, he is able to
preserve each only as a half-man, the wholeness and sanity of both having been
compromised by their mechanical commercial function. To be prudent in a
social sense, it seems, is to be inoffensive, mild-mannered, and well liked. In an
economic sense, however, it means keeping an eye on maximizing one’s profits.
For a time, the lawyer manages an uneasy balance between these concepts of
prudence, but he is unsure enough of his success that he must depend on the
judgment of another person, Astor, to show that he is prudent. As Emerson
had seen, prudence is “the science of appearances.”16 As a virtue, then, it is
possessed only by those who are perceived to have it, and perceptions are fickle
things.
Prudence, as the lawyer understands it, is not merely the science of
appearances; it is an appearance, one that can be competently attested to only
by outside observers like Astor. In Pierre, published a year before “Bartleby,”
Melville addressed the possibility that the public semblance of virtue might
be more socially valuable than its actual possession. He resumes this line of
thought in “Bartleby,” in which the lawyer’s love of virtue yields to his love of
reputation. Of all the agonizing prospects to which Bartleby’s presence subjects
him, the lawyer is daunted by none so terrible as “Bartleby’s possibly turning
out a long-lived man, and keep occupying my chambers, and denying my
authority . . . and scandalizing my professional reputation” (NN PT 38). An
absurd threat to expose him in the papers throws him into a panic. To be
sure, the prudence that Chief Justice Shaw describes in Brown demands an
awareness of society’s view of what is good and reasonable, but the lawyer
raises this awareness to a level approaching mania.

16Ralph Waldo Emerson, “Prudence” in Essays and Lectures (New York: Library of America,
1983), 357.

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The lawyer’s burlesque of prudence becomes a quality far different from

what Shaw seems to have had in mind. If the standards of prudence and
due care were meant to lower the barriers to aggressive economic expansion,
they have no such influence on Melville’s lawyer, who is averse to the energy
and turbulence that pervades much of his profession. Indeed, he is not much
more active than Bartleby. For the lawyer, the rule of prudence means the
cautious avoidance of conflict, not an incentive to accept more risk. Here,
indeed, is an additional layer to Melville’s commentary on prudence: the
careful values of his eminently safe narrator were already becoming obsolete
in the culture at large. The narrator first introduces himself as “a rather elderly
man” (NN PT 13), and the professional ethics he represents are rather elderly
as well. According to Morton Horwitz, by the time of “Bartleby,” “law, once
conceived of as protective, regulative, paternalistic and, above all, a paramount
expression of the moral sense of the community, had come to be thought
of as facilitative of individual desires and as simply reflective of the existing
organization of economic and political power” (Horwitz 253). With his quiet
gentility, his fitful but earnest seeking after moral truths, and his fondness for
classical allusions, Melville’s lawyer represents a kind of attorney who was fast
becoming an endangered species. In 1844, David Dudley Field complained,
“the bar is crowded with bustling and restless men. . . . The quiet, decorous
manners, the gravity, and the solid learning, so often conjoined in a former
generation, are now rarely seen together. A new race has sprung up and
supplanted the old.”17 Yet the new breed of lawyers represented the rough-and-
tumble ethos of post-Jacksonian America in which cases like Brown were being
valued not for what they suggested about ethics and communitarian virtue, but
for the opportunities they created for the boisterously active and the selfishly
competitive. The elderly lawyer of “Bartleby” and Lemuel Shaw belonged to
the same generation, and they found themselves in a strange position. As
senior members of their profession, they were in a position to speak with
moral authority; Shaw was able to establish prudence and reason as the law
of his commonwealth. However, the graying generation of attorneys spoke to
a society that was less and less disposed to heed their messages of care and
restraint.
In “Bartleby,” the lawyer’s obsessive moderation is presented as absurdly
comical, as when he meekly denounces New York’s decision to abolish his
office of Master in Chancery:

17 David Dudley Field, “The Study and the Practice of the Law,” United States Magazine and
Democratic Review 14 (April 1844), 345.

40 LEVIATHAN
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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 abroga-
tion of the office of Master in Chancery, by the new Constitution, as
a—premature act (NN PT 14).

Even in this moment of confessed rashness, the lawyer’s exaggerated caution

will allow him no stronger adjective than “premature.” His circumlocution is
meant as caricature, but it is caricature with a purpose. It shows that prudence,
the virtue of moderation, must itself be moderated. Carried to an extreme, it is
no more liberating than Bartleby’s near-catatonia. “Bartleby” is not the story of
a once-prudent man who has converted to a more genuine morality: although
he relates events that happened in the past, the lawyer’s introductory assertion
“I am an eminently safe man” is rendered in the present tense. However, if the
lawyer still adheres to prudence after his encounters with Bartleby, he clings
to it with the disturbing knowledge that his moral code has proven insufficient
to save a fellow being and the equally disturbing fear that it may not be a credo
strong enough to save the lawyer’s soul.
A leading treatise on the law of masters and servants, terms that the law
treated as synonymous with “employers and employees,” was published the
year before Bartleby. The authors regarded as a settled rule the principle that
the “wilful disobedience on the part of the servant of any lawful order of his
master, is a good cause of discharge.”18 Bartleby’s disobediences, of course,
are willful and myriad. If, following Bartleby’s first intonation of “I would
prefer not to,” the lawyer had done what seems to him the normal thing and
“violently dismissed him from the premises,” the law, depending only on the
degree of violence employed, would have supported him utterly (NN PT 21).
But, despite his legal rights, the lawyer does not eject Bartleby. The reasons
may be traced to the lawyer’s own inarticulate dissatisfaction with the law as
a means of governing behavior. Because the law does not seem sufficient as a
guide for handling Bartleby, the lawyer finds himself continually grasping after
a standard of ethics that will enable him to dispose of Bartleby and, at the same
time, satisfy the demands of his conscience.
His search for a workable moral code is the central problem of the text,
and this quest encounters at least three formidable obstacles. First, in order to
deal with Bartleby as a moral subject, the lawyer must decide upon a category
in which the scrivener can be placed, and Bartleby defies the categories on

18 Charles Manley Smith, A Treatise on the Law of Master and Servant (Philadelphia: T. & J. W.
Johnson, 1852), 73. Although in our own time statutes and collective bargaining agreements have
tended to mitigate the rule, the common law on this point is unchanged.

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which the lawyer’s training has taught him to rely. Second, the lawyer has come
to believe with almost religious confidence in a series of concepts, including
reasonableness, common usage, self-interest, and the public good, which he
considers mutually supporting and interchangeable. When Bartleby asserts an
inscrutable desire that cannot be reconciled with these concepts, he also raises
the possibility, entirely foreign to the lawyer, that self-interest and society’s
interest may radically differ. When the lawyer is then forced to confront an
expression of will that he cannot square with his idea of reasonableness,
his faith is shaken to its foundations. Finally, the lawyer’s moral choice is
complicated by his desire to be at once reasonable and charitable and by
his imperfectly repressed realization that neither goal can be reached without
thwarting the other. But we begin with the problem of categorizing Bartleby.
The lawyer explains his decision not to dismiss Bartleby by claiming that
he could not detect “the least uneasiness, anger, impatience or impertinence in
his manner; in other words . . . any thing ordinarily human about him. . . . [A]s
it was, I should have as soon thought of turning my pale plaster-of-paris bust of
Cicero out of doors” (NN PT 21; my emphasis).19 This apology is instructive,
for it reflects both the lawyer’s difficulty in placing Bartleby within the system
of legal relations and his concept of what makes law legitimate. For the lawyer,
the law does not simply encode an arbitrary system of power relations, within
which each person should seek his or her own interests as vigorously as
possible. Rather, the lawyer conceives the law as a compact among beings that
are basically alike in their abilities to interact, to think, and to feel. The lawyer
balks at invoking his legal right to dismiss Bartleby because Bartleby does not
seem to be a party to this compact.
That the lawyer’s initial humane response to Bartleby is triggered by
the scrivener’s apparent lack of humanness may seem contradictory or ironic,
but the contradiction is diminished in light of the fact that Melville’s “rather
elderly” narrator belongs to a generation of lawyers schooled in natural-law

19 The bust of the eloquent lawyer Cicero is perhaps an under-appreciated detail in the scene.
Cicero’s De Officiis speaks at length about duties to one’s fellow men, and it also enshrines
prudence as one of the four cardinal virtues. The presence of the bust in the office thus underscores
the lawyer’s commitment to prudence. The bust can also be seen as an emblem of the decline
of legal oratory. Melville’s lawyer never addresses a jury, and the eloquence of the profession is
preserved only in the form of a mute plaster effigy. In addition, the bust calls to mind a more
celebrated bust in the literature of the American Renaissance, the “pallid bust of Pallas” that serves
as a perch for Poe’s raven. Indeed, the two works have more in common than pieces of ornamental
sculpture. With its monotonous, negating responses to the scholar, its indifference to the bust on
which it sits, and its refusal to depart, the raven proclaims the failure of the scholar’s learning to
triumph over death and longing. With similarly insistent negation and omnipresence, Bartleby acts
as a nagging counterpoint to the lawyer’s care and method, forever reminding him of the limits of
rationality. An engaging though brief comparison of the two works is James L. Colwell and Gary
Spitzer’s “‘Bartleby’ and ‘The Raven’: Parallels of the Irrational,” Georgia Review 23 (1969), 37–43.

42 LEVIATHAN
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theory. All of the lawyer’s training advises him that law and rights are an out-
ward manifestation of the moral qualities inherent in human nature. According
to Grotius, the seventeenth-century legal theorist most closely associated with
natural-law philosophy, a right is “that quality in a person which makes it
just or right for him either to possess certain things or do certain actions.”20
But neither Grotius nor anyone else has shown Melville’s lawyer how to apply
this notion of rights to someone like the motionless, sphinx-like Bartleby, who
seems to lack inner humanity from which rights might be derived. Paradox-
ically, Bartleby’s inhuman aspect acts in his favor, at least at the start of his
campaign of disobedience. But his initial conflict with the lawyer hints at the
problem that will lead to Bartleby’s ruin: although being recognized as human
may entitle one to certain rights, this recognition can also expose one to the
punishments that the law reserves solely for those it regards as human. The
tenants who succeed the lawyer at No.—Wall-street, who are also lawyers,
have no problem in seeing Bartleby as human, and they therefore have no
trouble sending him off to the Tombs. Our own time has sadly accustomed
us to atrocities that have ensued from one people’s refusal to see another as
fully human. Ironically, Bartleby’s tragedy becomes complete only after his
humanity is acknowledged. This recognition makes him a subject of the law,
and the law does not treat him gently.
One of the reasons Bartleby’s presence is so unnerving is that he suggests
an alternative, alien possibility of what human nature might be. If the lawyer
acknowledges the not “ordinarily human” Bartleby,—if he is not to dismiss
Bartleby as simply unaccountable—he must redefine his ideas of what is
human and what is ordinary. And, indeed, the lawyer does revise his idea
of humanness as the story progresses. Whereas at the beginning of their
acquaintance Bartleby strikes the lawyer as no more human than a statue, the
scrivener eventually becomes for him an emblem of the human condition, as
illustrated in the lawyer’s closing apostrophe, “Ah Bartleby! Ah humanity!”
(NN PT 45). As, in the lawyer’s eyes, Bartleby transforms from a dehumanized
subject to a quintessential human being, the lawyer’s values also transform. At
the outset, the lawyer would like to see Bartleby as human because, as a person,
Bartleby would be subject to the law that would permit the lawyer to turn him
out. Later, however, the lawyer’s need to see Bartleby as human springs from a
need to feel sympathy and to see the scrivener as a fit object for charity. But this
change in perception is slow to occur, and before it begins, the lawyer tries to
bring Bartleby into the social compact, not with charity, but by argument and
logic, always pressing a line of reasoning meant to legitimate the compact and

20 As qtd. in Roscoe Pound, The Spirit of the Common Law (Boston: Marshall Jones, 1921), 90.

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to convince Bartleby of the reasonableness of the rule of law. This strategy,

however, leads to his second obstacle in dealing with Bartleby; when argument
fails, the lawyer must confront the uncomfortable idea that not all people are
moved by an identical, socially unifying logic.
The lawyer’s first attempt to persuade Bartleby to accept reasonableness
comes when the scrivener declines to proofread a series of documents along
with his fellow workers. The lawyer’s argument contains three separate ap-
peals, so closely juxtaposed that it is easy to miss the distinctions between
them. The lawyer speaks first to Bartleby’s self-interest and then to the univer-
sality of custom.

“These are your own copies we are about to examine. It is labor saving
to you, because one examination will answer for your four papers. It
is common usage. . . . You are decided, then, not to comply with my
request—a request made according to common usage and common
sense?” (NN PT 22)

Finally, calling upon his office staff as a microcosm of the general will, the
lawyer polls the rest of his employees, asking each in turn to take a side in
the dispute. The lawyer’s argument moves quickly from particular to gen-
eral, following a natural course of democratic remonstrance from private and
personal to public and majoritarian. The lawyer makes his successive leaps
from the interest of the individual to shared custom and thence to public
opinion almost unconsciously, showing that he is not used to imagining people
whose private desires may contradict either common usage or the will of the
majority.
This lawyerly prudence is similar to Shaw’s in that it seeks to harmonize
the inner directives of the soul with the external needs of the community.
When Shaw held that George Kendall would be liable for neglecting to use
ordinary care, what he really meant was that Kendall must not carelessly place
his own interest in stopping a dog fight above the interest of other people in
not having their eyes put out by errant sticks. If he did so, then he must pay.
By forcing men like Kendall to bear the cost of the damage that their careless
acts inflict on society, Shaw hoped to make would-be wrong-doers realize that
the public interest is quite literally the same as their own. In Melville’s story,
the lawyer tries to illustrate that Bartleby’s personal interests and those of
everyone around him are the same. That self-interest and common usage can be
made to correspond and may be relied upon to solve problems like Bartleby’s
is a credo that Melville’s lawyer adopts as “his own plainest faith” (NN PT 22).
Yet Bartleby’s quiet “I would prefer not to” renders this faith impotent.

44 LEVIATHAN
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The lawyer surmises that he cannot persuade Bartleby because “some

paramount consideration prevailed with him” (NN PT 22). Prudent reasoning
fails the lawyer in his relations with Bartleby precisely because it fails to
account for such paramount considerations. As Thoreau had observed with
respect to Webster, the lawyer’s truth is not Truth, but expediency. Like
Webster, Melville’s lawyer is a man of partial, contingent truths. He is, like
the great senator, unable to take a fact out of its relations and behold it in its
absolute, transcendent state. The reader of “Bartleby” never learns the nature
of the scrivener’s paramount consideration, not only because Bartleby chooses
not to divulge it, but also because this kind of pure, annihilating Truth is
beyond the power of the narrator either to perceive or relate. As has been
suggested, prudent morality concerns only the world of appearances and has its
effects only at the outer membrane of the self. Enmeshed in a world of surfaces,
the lawyer thus finds Bartleby impenetrable. As he confesses, “I might give alms
to his body; but his body did not pain him; it was his soul that suffered, and
his soul I could not reach” (NN PT 29).
The lawyer’s final and perhaps most telling problem in dealing with
Bartleby has to do with the inability of prudence to affirm spiritual value and
its tendency to imprison one within the self. We have seen that a prudent
person is expected to regard the interests of others as if they were one’s own.
Shaw’s law of negligence requires people to bear the costs of their own lapses
in reasonableness; it implies that whoever carelessly harms another does a
commensurate harm to himself. Excellent as these ideas may be as foundations
for social conduct, they leave no room for truly disinterested goodness. Brook
Thomas has noted that, throughout “Bartleby,” “the lawyer returns to the
necessity to remain prudent . . . [and] we also see how his prudence (like
Shaw’s) makes him a successful lawyer in the service of commercial interests
on Wall Street.”21 What lies beyond Thomas’s analysis, however, is that,
although the lawyer reflexively observes legal prudence, he is dissatisfied with
prudence as a moral, as opposed to a legal standard. Though the lawyer never
confronts the issue directly, his narrative is a story of his disaffection with the
standard of prudence, not only because it cannot save Bartleby from destruc-
tion, but because it fails to insulate the lawyer himself from the tortures of
conscience.
Lawful prudence does not require the lawyer to tolerate Bartleby’s pres-
ence in his offices, nor does it compel him to offer Bartleby a place under
his own roof, yet the lawyer does both, because to do merely what is legally

21Brook Thomas, Cross-Examinations of American Law and Literature: Cooper, Hawthorne, Stowe
and Melville (New York: Cambridge University Press, 1987), 169.

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necessary will not answer to his conscience. Trained in the habits of due care,
the lawyer nevertheless feels drawn toward a higher law, one which he summa-
rizes in the words of Christ: “A new commandment give I unto you, that ye love
one another” (NN PT 36). But if the lawyer cannot bear to be merely prudent
in his dealings with Bartleby, he cannot manage to be consistently charitable,
either. The reason is that, although the lawyer comes gradually to recognize
the limits of prudence and the need for a charity that transcends self-interest,
he cannot free himself from the discourse of reasonableness that dominates
his understanding of the world. The lawyer recalls Christ’s command just after
brooding upon the real-life murder of Samuel Adams by John Colt, which took
place in a solitary office not too different from the lawyer’s own.22 He is for
an instant tempted to kill Bartleby before Christ’s injunction comes into his
mind. He writes of recalling the commandment, “This it was that saved me”
(NN PT 36).23 But no sooner does the lawyer repeat the divine injunction than
he feels compelled to swaddle his charitable impulse in prudent rhetoric:

Aside from higher considerations, charity often operates as a vastly

wise and prudent principle—a great safeguard to its possessor. Men
have committed murder for jealousy’s sake, and anger’s sake, and
hatred’s sake, and selfishness’ sake, and spiritual pride’s sake; but
no man that ever I heard of, ever committed a diabolical murder for
sweet charity’s sake. Mere self-interest, then, if no better motive can
be enlisted, should, especially with high-tempered men, prompt all
beings to charity and philanthropy (NN PT 36).

Bartleby is guided by a “paramount consideration.” The lawyer dismisses

“higher considerations” in the space of four words. In his prudent defense

22 The lawyer finds “the circumstance of being alone in a solitary office . . . of a building entirely
unhallowed by humanizing domestic associations” to be singularly conducive to thoughts of
homicide (NN PT 36). This opinion may be read as ironic in the light of Lemuel Shaw’s dictum
in Brown v. Kendall. There, Shaw had suggested that prudence operates on a sliding scale and
that a man who discharges a gun “on an open and extensive marsh, or in a forest” may exercise
a lower level of care than someone doing the same act in a crowded city. He assumed that the
farther removed one was from urban conditions, the less need for prudence there would be. In
alluding to the case of Colt and Adams, Melville seems to hint otherwise. That Colt should have
“imprudently permitt[ed] himself to become wildly excited” in a commercial building, at the very
core of urban life, implies a problem with Shaw’s categories of civility (NN PT 36). Shaw assumes
that civilization is most powerful at its core, weakening as it radiates outward toward wilderness.
However, both in the fictional world of Bartleby and the factual world of Colt and Adams, the city
does not always civilize, and the darkest regions lie not at the margins but in the center.
23 That Christ’s words save the lawyer, not Bartleby, is of key importance. In an instant, Melville
shifts the focus of his narrative from Bartleby’s survival to whether the narrator can find salvation.
That the story is ultimately the tale of the lawyer’s search for redemption is underscored when the
lawyer confesses that he cannot control his angry outbursts at Bartleby “for the very soul of me”
(NN PT 26).

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of charity, the lawyer makes his boldest attempt to equate prudence and
pragmatism—already identified as “his own plainest faith”—with religion.
Shaw embraced prudence because he needed to locate secular virtues that
could keep society together as it broke loose from its traditional religious
moorings. In “Bartleby,” the lawyer conceives of prudence as a “faith” and
an analogue of charity, terms that would suggest prudence as a type of civil
religion. Indeed, for the lawyer, prudence becomes the value by which all other
virtues are tested. The lawyer struggles to unite the social visions that underlay
Kneeland and Brown v. Kendall; he is trying to articulate an idea of prudent
Christianity. However, such a forced marriage produces only incoherence.
Even as a unit of measure, however, the lawyer’s prudence is morally cor-
rupting because it translates even the most selfless impulse into terms of self-
interest. The lawyer’s claim that charity is a prudent principle is not far distant
from Emerson’s argument that heroism and holiness are “reconcilable [with]
the prudence which secures an outward well-being.”24 But unlike Emerson’s,
the lawyer’s logic has the effect, not of elevating prudence toward altruism, but
of allying it with private gain.
Reading the passage in which the lawyer first resolves to be kind to
Bartleby, few critics have missed the tropes of consuming and self-gratification:

Here I can cheaply purchase a delicious self-approval. To befriend

Bartleby; to humor him in his strange wilfulness, will cost me little or
nothing, while I lay up in my soul what will eventually prove a sweet
morsel for my conscience (NN PT 23-24).

With the phrases “delicious self-approval” and “sweet morsel for my con-
science,” Melville emphasizes gustatory sensations. At the same moment
that the lawyer determines to do good for Bartleby, he envisions a sort of
spiritual cannibalism; Charity becomes an almost parasitic act, enabling the
lawyer’s soul to savor the juicy satisfaction of relieving another’s misfortune.
The lawyer’s logic-chopping equations of charity with prudence are credible
enough to have decoyed one commentator into lauding the lawyer as “a model
of Christian humaneness and generosity” and to hail “the exemplary piety and
goodwill with which he tries to penetrate Bartleby’s isolation.”25 This reading,
however, misses the moral void at the heart of the lawyer’s gestures. Unable
to think his way free from the selfish calculations that have become habitual
to him, the lawyer is capable of accepting neither prudence nor piety. In his

24 Emerson, “Prudence,” Essays and Lectures, 365.

25 Richard Abcarian, “The World of Love and the Spheres of Fright: Melville’s ‘Bartleby the
Scrivener,’” Studies in Short Fiction 1.3 (1964): 208, 207.

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 J O H N M A T T E S O N

inability to pull off the Emersonian trick of reconciling the two, he becomes an
ethical failure.
As he struggles to reorient his worldview to account for the unac-
countable Bartleby, the lawyer remains true to his self-assessment as one
who believes that “the easiest way of life is the best “ (NN PT 14). True
charity—charity that requires a noticeable self-sacrifice—is hard. So, too, on a
different level, are the emotional consequences of denying those who have suf-
fered. Neither stout-hearted enough to practice authentic charity nor strong-
stomached enough to turn his back upon the scrivener, the lawyer makes one
last attempt to find the easy way out; perhaps he can evade the responsibility
of choice altogether. This time, the path of least resistance conducts him to
the pages of “Edwards on the Will” and “Priestley on Necessity,” in whose
defenses of predestination, he finds his preference for passivity confirmed (NN
PT 37). Arguing that all outcomes have already been determined, Edwards
and Priestley reason in ways that, the lawyer believes, make it acceptable to
abandon moral choice and go with the flow.
Again, however, the lawyer has argued to no avail. He is about to
discover that the legal philosophy of prudence, in which he thought he had
found a snug existence, is not a philosophy that favors detached tranquility
after all. While the fatalistic avoidance of choice is acceptable to the lawyer, it
soon produces friction with his professional colleagues, who define prudence
in terms of economic activity, and whose frenetically paced professional lives
leave no time for indulging the idle freaks of a motionless scrivener. “Business,”
the lawyer observes, “driv[es] fast” (NN PT 37). In a nation propelled by
commerce, prudence is enlisted in the service of that inexorable drive. It is a
virtue of action, not contemplative ease, and it demands that choices be made.26
In the midst of the lawyer’s flailing, ineffective efforts to save Bartleby,
Melville inserts a deft ironic stroke. When the new tenants to No.—Wall-
street press the narrator to help them remove Bartleby from the premises, their
landlord urges him, “something you must do, and that without delay” (NN
PT 40). The narrator reacts by falling back, aghast, in part, perhaps, because
the threat he must soon make to Bartleby, “Either you must do something, or
something must be done to you,” has been turned against him. It is not only
Bartleby, but the lawyer himself who impotently stands against the torrent
of economic activity; it is he who now must act or be swept aside. The man

26 Not the least of the lawyer’s worries is that Bartleby may remain so long as to “claim possession
of my office by right of his perpetual occupancy” (NN PT 38). The lawyer’s dread that Bartleby
may take over his property by adverse possession signals his fear that, by the sheer persistence of
its being asserted, Bartleby’s way of life may acquire more legitimacy than the lawyer’s own. In
short, he is afraid that the outlaw will become law.

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who had always thought the easy way was the best, the man who has always
swum with the tide of social convention, at last finds that tide moving too
fast to respect his convictions. Like Shaw, the lawyer had thought that he
could temper the ruthlessness of the marketplace by speaking the language
of reasonableness and prudence. However, he comes face to face with lawyers
whose prudence is empty of compassion: the new men of the profession whose
idea of reason declares that, if a homeless man is sleeping in the stairwell
and scaring away the clients, that man must logically go to prison. To his
astonishment, the lawyer finds that these men, not he, represent the judgment
of society.
In Brown v. Kendall, with his careful formulations about prudence and
due care, Lemuel Shaw appeared to be reasoning toward a moral standard
and a consensus of rationality. Ironically, however, it is words like prudence
and reasonableness on which Melville’s narrator relies to camouflage his
morally timid existence. More to the point, however, “Bartleby” reveals that
charity and kindness are not prudent ideals. To live a charitable life, one must
be willing to give unreasonably. “Bartleby” also deftly exposes the latent double
meanings in Chief Justice Shaw’s rhetoric; Melville shows that “reasonable-
ness” within the law is not principally an ethical concept, but rather a means of
enabling vigorous economic activity. Shaw’s reasonableness not only favors the
boisterous pursuit of wealth but, by implication, brands an outwardly placid,
inwardly contemplative life, driven by “paramount concerns,” as contrary to
reason.
More than two decades after “Bartleby,” in Clarel, Melville expressed
anxiety about an America in which “Not only men, the state lives fast— /
Fast breeds the pregnant eggs and shells, / The slumberous combustibles / Sure
to explode.” Melville trembled at the thought of unbridled capitalism and
unprincipled democracy uniting to plunge the nation into “civic barbarism.”27
In “Bartleby,” Melville already foresaw a wildly onrushing America in which
no person, either scrivener or lawyer, could safely “prefer not to.” He observed
an evolving nation in which law would no longer be regarded as an articulator
of public morals, but as an amoral mediator between private appetites and
ambitions. Within a legal regime of reasonableness, he anticipated a collapse
of reason that would threaten to make Bartlebys of us all.28

27 Herman Melville, Clarel: A Poem and Pilgrimage in the Holy Land, ed. Harrison Hayford, Hershel
Parker, and G. Thomas Tanselle (Evanston and Chicago: Northwestern University Press and The
Newberry Library, 1991), 459, 460.
28I wish to thank Robert A. Ferguson, Jon-Christian Suggs, Laurie Robertson-Lorant, Timothy
Marr, and Cristine Varholy for their generous and thoughtful contributions to this essay.

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