Melville's Master in Chancery and his Recalcitrant Clerk
Author(s): Herbert F. Smith
Source: American Quarterly, Vol. 17, No. 4 (Winter, 1965), pp. 734-741
Published by: The Johns Hopkins University Press
Stable URL: http://www.jstor.org/stable/2711130 .
Accessed: 26/09/2013 11:43
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
.
The Johns Hopkins University Press is collaborating with JSTOR to digitize, preserve and extend access to
American Quarterly.
http://www.jstor.org
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
F. SMITH
HERBERT
Universityof Wisconsin,Madison
Melville's Master in Chancery
and His Recalcitrant Clerk
CONSIDERING
HIS
VORACIOUS
AND
RATHER
IJNDISCIPLINED
READING,
WE
SHOULD
not be too surprisedto find that Herman Melville had a considerable
acquaintance with some of the more arcane points of law and AngloAmericanlegal history.Yet, forthe mostpart Melville was contentto use
his knowledgeof law eitherto ridicule the legal professionor to suggest
the failure of law, with all its complexities,its immense traditionalist
to eradicatehuman evil. He is jocular about thesituationof the
structure,
lawyersin the Churchof the Apostlesin Pierre: theyare restrictedto the
groundfloor"as people would seldomwillinglyfall into legal altercations
unless the lawyerswere alwaysveryhandy to help them."But the vacant
upper floorssuggest "unwelcome similitudes" to the lawyers,"having
as compared
referenceto the crowded state of their basement-pockets,
with the melancholy condition of their attics;-alasl full purses and
emptyheads!"' ChaptersLXXXIX and XC of Moby Dick, "Fast Fish and
Loose Fish" and "Heads or Tails" include more legal citationsand examples than any otherchaptersin the novel, but presenta bitterpicture
of law as reduciblemerelyto the conceptsof possessionand force.2
One of Melville's short stories,"Bartleby the Scrivener,"does deal
entirelywith a lawyerand his officestaff.Though criticswho have analyzedthe storyhave paid littleattentionto the narrator'sprofession,it is,
I believe,importantto a full understandingof the story.At the timethe
storyopens,theunnamednarratorhad enlargedhis "snugbusinessamong
rich men's bonds, and mortgages,and titledeeds" to become a Masterin
Chancery. Why this specificoffice?The answerprovidesthe underlying
metaphorforthe story.
1
(New York, Grove Press, 1957), p. 371.
2 "Fast Fish and Loose Fish" is somethingof a metaphoric analysis of the limitations
of natural law.
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
Melville's Master in Chancery
735
The situationof the Court of Chanceryis unique to Anglo-American
law. Courts of Chancerywere founded in England in the fourteenth
century,directlydescendedfromthe position of the Lord Chancellor of
the King. The Chancellor,firstappointed under Edward the Confessor,
acted as the king's secretary,
chiefchaplain, holder of the great seal and
as spiritualadviser,the "conscienceof the king." It could be a delicate
position,as theexamplesof Becket,Wolseyand More attest.The Chancellor veryearlyin Englishhistorybecame a forceat law. In a monarchythe
king must possessthe power to dispensejustice, to defend the poor and
thedefenseless.Moreover,sinceEnglishcommonlaw tendedto be circumscribed by literalnessand dependence upon precedent,subjects asked
the king for relief from injuries which demanded redressbeyond the
power of the ordinarycourts.Since the Chancellorwas always a churchman during the early reigns,and thereforemightbe expected to judge
moralityas well as legality,the king oftenpassed the complaintson to
him, at firstforadvice, later for positiveaction.
For a long period the Chancellor'spowerswere only advisory,though
as an ecclesiastiche could inflictthe punitivepowersof the church. But
in the reign of Richard II, Chancellor Waltham set up a Court of the
Chancellorand issuedsubpoenae whichwererecognizedby both the king
and the people of England. The court thus founded was immensely
powerfulin the beginning,though it declined through the centuries.
Officesof twelveMastersin Chancerywere then created,to be chosenby
the Chancellorand to hear cases in WestminsterPalace. They made recommendationsto the Chancellor who passed the final decision. They
were expected to know Roman law as well as common law and took
precedenceover all serjeants-at-law.With rank came jealousy and criticism. In the fifthyear of the reign of Richard II theywere criticized
by the Commonsas "over fattboth in boddie and purse,and over well
furredin theirbenefices,and put the King to veirygreat cost more than
needed." 3
Chancerywas transportedacross the Atlantic to the English colonies
whereit flourishedside by side with courtsof commonlaw. The Courts
of Chanceryin Americawere closelyidentifiedwith the royal governors,
as theirheritagemightsuggest. But, strangelyenough, afterthe revolution theywere retained,sometimeseven strengthenedfor the firstfew
decades of the new nation's life until, in the middle of the nineteenth
century,a wave of reformcombined chancerypleadings with common
3 D. M. Kerly, An Historical Sketch of the Equitable Jurisdictionof the Court of
Chancery (Cambridge, England, 1890), p. 59.
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
736
American Quarterly
law. In 1848 the state of New York did away with the court,thoughit
kept many of its formsof pleading.4
For Melville's purposesin the writingof "Bartleby,"two aspectsof the
historyof chancerywere so significantthat he needed to make the particularpoint that his narratorhad been conferreda mastershipin chancery. First,the factthat the officeexisted in a republic almosta century
afterthe last colonial governorhad departedwas an extraordinary
anachronism.5 The Master in Chancery,essentially,draws his power from
associationwith the king,not at all from"below," fromthe common-law
courtsand, in a democracy,fromthe people. A connoisseurof symbols,
Melville musthave seen the possibilitiesof a characterwho has the position of a Master in Chanceryin historic-symbolic
terms,as he does the
specksynderin Moby Dick, or the mates and harpooneersas "Knights
and Squires." Moreover,the royal associationof the Master in Chancery
perfectlysuited the microcosmof the law officeat
- Wall Street;it is
the narratorwho is the orderingforce,the regal or possiblyeven divine
power who rules over the so various dispositionsof his employeesTurkey,Nippers and GingerNut-and createsa functionalsocietyfrom
theirdisparateparts. The possibilitiesof thismetaphorin termsof readingsforthestoryare endless: thenarratormaybe God, Pilate or theking;
the officegroup mankind, the Jews at the time of Christ or societyin
general; Bartlebyenquiring man, the historicChrist or the unsatisfied
artistin society. One need only substitutea new foundation,and offwe
go into a new allegory.
A second considerationimplicit in the historyof Chancerymay have
been more importantin Melville's choice of the trope. Courts of Chanin principle
cerywerecommonlyalso called Courtsof Equity and differed
law
their
of
common
as
second
title
"The
fromcourts
suggests.
evolution
of law," a recentwriterhas stated,"is to a large extentthe historyof its
absorptionof equity." While primitivelaw is concernedonly with the
maintenanceof public order and strictlaw (commonlaw) is principally
interestedin individual security,
equitydrawsits principlesfrom"natural
law," and is concernedwithwhat can onlybe describedas the ideal application of justice. Aristotledefinedequity as "that idea of justice which
contravenesthe writtenlaw," and that definitionhas hardly been im4 William C. Robinson, Elements of American Jurisprudence(Boston, 1900), pp. 300-1;
Kerly,Historical Sketch. . ., pp. 23-25,94-112,passim,283-88; Lewis Mayers,The American Legal System (New York, 1955), pp. 61-62; Ralph A. Newman, Equity and Law:
A Comparative Study (New York, 1961), p. 50.
5 It is perhaps worth noting that Pennsylvania, while a colony, had no Courts of
Chancery.They were institutedbrieflyafterthe Revolution. The association with royal
prerogativemay thus be seen on the one hand, the forgetfulnessof the colonists concerning this association in the firstflush of democracyon the other.
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
Melville's Master in Chancery
737
provedupon.6 Courtsof Equity or Chancery,then,are not "higher"than
courtsof commonlaw, but are courtswhereindifferent
principlesof law
are extended-principles of ideality instead of precedent,principles of
absolute instead of relativejustice.
We can perhaps trace Melville's thinkingto his arrival at the donnee
of a Master in Chancery. We know that fromJuly6, 1852, to sometime
before the publication of "Bartleby" in Putnam's for November, 1853,
Melville was wrapped in the storyof "Agatha." This was the storytold
him by a New Bedfordlawyerof a woman who married a man whom
she rescued as a shipwreckedsurvivor.The man then lefther and married again in Philadelphia, raising a familyand living an apparently
normal life. When his firstwife,Agatha, finallyattemptedto reach him
again, seventeenyears afterhis departure,he had died and left everythingto his second wife and family.The equitable division of his testamentwas thenthe knottylegal problemfacedby the courts.7As material
to be convertedinto fiction,the storynaturallydivides into two parts:
of dispensingequity to the two wives,for which the
the legal difficulty
wisdom of a Solomon would seem to be necessary,and the description
of Agatha's sensibilitiesas she waited, alone, on her island forseventeen
years for news of her lover. Melville seems to have been preoccupied,
indeed, almost obsessedwith the latterconsiderationduring this period.
He offeredthe storyto Hawthorne,sensingdoubtlessthat the author of
"Wakefield"would find the mattersympathetic,then asked Hawthorne
to returnthe notes he had made in hope that he could write the story
himself. Melville never wrote the storyof Agatha, but he did write
"Bartleby" as a firstfruit of this absorption and, later, the storyof
Hunilla, the "Chola Widow." The latter storyis closely connected to
the former,we may presume,was
the sensibilityof an Agatha-character;
abstractedfromthe philosophical and legal backgroundof the problem
of Agatha. Agatha'swas a problemof the conflictof commonand equity
law, and Melville must have encounteredthe confusion (then rife in
New York because of the procedural changes of 1848) betweencommon
law and equity. Never one to miss the possibilitiesof an "ambiguity,"of
a metaphordeep enough to suggestthat fundamentaldivision between
the real and the ideal, the material and the spiritual, Melville seized
6 Newman, Equity and Law, pp. 13, 255. Newman gives the citation from Aristotle
as Rhetoric,Book I, Chap. 13. The apparent paradox of a distinctionbetween "justice"
and "equity" is the subject of innumerable treatises by distinguished lawyers and
judges, many of which are cited by Newman in an appendix to his work, pp. 269-70.
7 See The Letters of Herman Melville, eds. Merrell R. Davis and William H. Gilman (New Haven, 1964), pp. 153-63. The biographical significanceof the "Agatha"
letters was first investigated by Harrison Hayford, "The Significance of Melville's
'Agatha' Letters,"English Literary History, XIII (1946), 299-310.
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
738
American Quarterly
upon the ironic possibilitiesforhis newlyconferredMaster in Chancery.
Several recent criticshave suggestedthat the narratorand Bartleby
are "double" characters. Mordecai Marcus interpretsthis "doubling"
of the narratorin Bartlebyas a challenge to the narrator'sadjustment
to the conditionsof the world. KingsleyWidmer sees the same "doubling" in a slightlylarger sense: Bartleby's challenge of the narrator's
"safe" position is a stingingcriticismof the limitationsof benevolence,
rationalismand self-conscious
humanism.8The implicationsof the narrator'spositionas pettifogger
recentlyraised to a mastershipin Chancery
tend to bear out eitherof theseinterpretations.A lawyerin his position
is a lawyerjust awakeningto the complexitiesof law and life. The assurance he had as "one of those unambitiouslawyerswho never address a
jury, or in any way draw down public applause," but who remain safe
"in the cool tranquilityof a snug retreat,"is suddenly challenged by
the whole new systemof equity pleading and decision. The Master in
Chanceryis not concernedwith the practicable,the workable,but strives
for the ideal. Because of his new office,our narrator,hithertocontent
with a relative legal world and philosophy,is suddenlythrustinto the
legal equivalent of strivingforabsolute justice. Almostimmediately,
and
as a direct result of that new position (for he must hire Bartlebyas a
consequence of the expected increasein his volume of work),he is challenged in his new legal thinkingby the exactly apposite problem of
Bartleby.
Most of the details of the storycontributeto this centralmetaphorof
in Chancery. The narrator'spre-Bartlebyexistenceis one
the pettifogger
the
idea
based on
of adjustmentof and to conditions,an application of
mind.
the common-law
His two unlikely clerks,Turkey and Nippers,
balance each other out like contrastingparagraphson a contract. And
the narratormay be punning,but he is not entirelyironicin his admiration for Ginger Nut when he says,"indeed, to this quick-wittedyouth,
the whole noble science of the law was contained in a nutshell."
When Bartlebyarrivesin the office,the narrator'sfirstthoughtsare
still toward"adjustment." He favorsBartlebybecause he is "glad to have
amongmycorpsof copyistsa man of so singularlysedate an aspect,which
I thoughtmightoperate beneficiallyupon the flightytemperof Turkey
and thefieryone of Nippers." That thisassumedpurposeis reallydirected
towardhis own well-beingis shown by the fact that the narratorplaces
8 Mordecai Marcus, "Melville's Bartleby as a PsychologicalDouble," College English,
XXIII (1962), 365-68; Kingsley Widmer, "The Negative Affirmation:Melville's 'Bartleby,'" Modern Fiction Studies, VIII (1963), 276-86. Norman Springer,"Bartleby and
the Terrors of Limitation," PMLA, LXXX (1965), 410-18, furtherextends the investigation of interactionbetween the narrator and Bartleby in the area of adjustment to
a nihilistic condition.
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
Melville's Master in Chancery
739
separatedfromhim only by a foldingscreen,
Bartlebyin his own office,
in order that "privacyand societywere conjoined." Again, the purpose
and techniquerepresentthe workingsof a practical common-lawmind.
At first,Bartlebyconformsto the narrator'sexpectations. His accommodationto the material,common-lawneeds of the narratoris borne out
by the association of eating imageryconnectedwith his early copying:
he is "famishingfor somethingto copy," he seemed to "gorge himself"
on the work with "no pause for digestion." But, immediatelyafterthe
narratormakes his firststatementin the storybased upon the new kind
of consciousnessdemandedby his new positionin Equity,Bartlebybegins
his retreatinto spiritualrecalcitrance.The narratornotes that the reading of copy is a "dull, wearisome,and lethargicaffair,"intolerable "to
as an example of whichhe cites "the metsome sanguinetemperaments,"
tlesome poet, Byron." When Bartlebyfirst"prefersnot to" read copy
immediatelyafterthispassage,he is trulyactingas the narrator'sdouble.
A similarprogressionfollowsthroughthe story. Each time the narrator
is made aware in his own mind of a complexity,an unpredictableor
menambiguouselementin life hithertoundreamedof in his pettifogger
tality,Bartlebypresentsan applicable case in point.
First,afterBartleby'srefusalto read copy in frontof the whole office
staff,the narratornotes that "when a man is browbeatenin some unprecedented9 and violentlyunreasonable way, he begins to staggerin his
own plainest faith,"and he calls upon "any disinterestedpersons" presforhis own falteringmind." When the narent "forsome reinforcement
rator does this,he findsthat such amici curiae as Turkey and Nippers
are not really helpful to him. Next, he determinesto use Bartlebyto
"'cheaplypurchasea delicious self-approval,""to lay up in my soul what
will eventuallyprove a sweet morsel for my conscience." Accordingly,
he firstprovokesthe post-prandially
pugnaciousTurkeyagainstBartleby,
then demurs-"Pray, put up yourfists,"then a fewdays later repeats the
scene in the morning,this time deterringNippers from assault upon
Bartlebywith a Bartlebyaninjunction himself:"'Mr. Nippers,' said I,
'I'd preferthat you would withdrawfor the present.'"
At this point in the storythe narrator(and, subordinately,the other
membersof his officebesides Bartleby) has been indoctrinatedto the
point of a superficialand literal comprehensionof the principles of
9 Surely the pun on the common-law pleader's staple, "precedent," is intentional.
Throughout the storyMelville has succeeded in parodying the style of legal rhetoric.
The second paragraph of the story,forexample, includes two instancesof the "not un-"
construction: "I was not unemployed in my profession.. . . I was not insensible to
the late John Jacob Astor's good opinion." There are many other stunning examples
of legal periphrasis. I discuss Melville's punning on the word "master" and the principle of assumpsit below.
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
740
American Quarterly
equity. The key to theircondition is in the word "prefer." The narratorfindsthathe uses the word "upon all sortsof not exactlysuitableoccasions,"Turkeyand Nippers use the word withouteven being aware of it.
The word itselfis exquisitelychosen by Melville to suggestthe human
and existentialcondition of "bearing before"or "settingbefore" in the
matterof consequential choice. It is also apposite to the situation of
equity pleading as opposed to common law pleading. Only in equity
pleading is the preferenceof the plaintiffforone kind of restitutionover
another a consideration.10
Shortlyafterthe narratorfindsthat Bartlebyhas "turned the tongues,
if not the heads, of myselfand clerks" throughtheir own unconscious
choice of the word "prefer,"the narratorgives Bartlebyhis notice. But,
of course,when the time is up Bartlebyis still there. The narratorthen
embarksupon yetanotherextensionof the principlesof equity in hopes
of riddinghimselfof Bartleby. Instead of enagagingin "vulgar bullying
. . .bravado . . . [or] choleric hectoring," he simply asserts the principle
of assumpsit,a chancerywritissued in cases of nonfeasance(non-performance) in the fifteenth
centuryand later. Melville givesaway his metaphor
with a seriesof puns, firston the narrator'sposition as Master in Chancery:"I could not but highlyplume myselfon my masterlymanagement
in gettingrid of Bartleby. MasterlyI call it...."
Then he continues
with a bravura punning performancewithin two paragraphs in which
the words "assume" and "assumption"are repeated no less than eleven
times.
The narratorat thispoint has proceededabout as far as literalismcan
take him into the principlesof equity. When the "old Adam of resentment" rises in him against Bartleby,he recalls the "divine injunction:
'A new commandmentgive I unto you, thatye love one another.'"11 He
invokes the idea of charityand determinesto governhis relationswith
Bartlebythroughmore than the literalreliance upon equity he has used
to thispoint. He seekssolace throughresearchin such non-commonlaw
worksas "Edwards on the Will and Priestleyon Necessity."12 In this
10 Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, 1954),
pp. 64-65; Newman, Equity and Law, pp. 56-58. To a layman the details are confusing, but there is a distinct differencebetween a plaintiff'srights "at law" and "in
equity." Where law is concerned with the rigid form,"damages," equity uses the more
idealistic term, "remedy." The distinction is basic.
11 The equity-commonlaw metaphor is apt for this extension into theology. The
principles of equity may be described as relating to the principles of common law as
the ideas of the New Testament relate to the ideas of the Old Testament.
12 No critic has noticed that these very philosophic sounding titles are also perfectly
appropriate as legal titles,especially for the purposes of equity pleading. All one need
do is accept the pun on "will" as "testament" and "necessity" in its legal sense, as
cause in hardship. Both terms were common to equity pleading at the time of the
writing of the story.
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions
Melville's Master in Chancery
741
mannerhe does achieve a stasis with Bartlebywithin the microcosmof
the office.But external,societal influences-the opinions of his "professional acquaintances"-lead him to the extremestep of abandoning his
officesand Bartleby. He therebybrings about the denouement of the
story,Bartleby'simprisonmentand death and his subsequent transcend13 the perence to the companyof "kingsand counselors[chancellors?],"
fecthaven for a test of equitable principles.
13Widmer, MFS, VIII, 284, points out the probable source of the phrase in Job
(3:14). The identificationof "chancellor" with "counselor" is a piece of folk etymology,
but it is not unknown.
GreatNews,
inthe
LondonGazette!
This content downloaded from 128.97.4.228 on Thu, 26 Sep 2013 11:43:13 AM
All use subject to JSTOR Terms and Conditions