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American Literature 75.1 (2003) 1-30



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"Victory of LAW":
Melville and Reconstruction

Deak Nabers

In his famous "Supplement" to Battle-Pieces and Aspects of the War (1866), Herman Melville claims he wants the volume to contribute to what he calls "just thoughts" about the legal terms on which the "Re-establishment" of the Southern states should take place. 1 He hardly needed to articulate this ambition in such explicit terms. From the second line of the opening poem, "The Portent. (1859.)," which refers to the dubious legality of John Brown's execution, to the penultimate stanza of the final poem, which ponders the claim that "‘The South's the Sinner!'" Battle-Pieces repeatedly presents itself as a meditation on the politics and legal standing of the Civil War and Reconstruction, understood in terms of what should count as the law.

But despite the poems' obvious concern with political and legal issues, most commentators have been reluctant to account for Battle-Pieces as a commentary on the highly charged political debates of the 1860s. Instead, they have focused upon the poems' capacity to capture the tangible horror of the battles they describe and the complexity of the volume's various verse forms. 2 In the pages that follow, I will take up Battle-Pieces in the political terms in which it presents itself, approaching it chiefly through its interest in the contemporaneous debates about the legal grounds on which the Civil War was fought and that Reconstruction should proceed. 3 Attending carefully to the way these poems represent the idea of law will help us revise the conventional accounts of both the legal dynamics of Reconstruction and Melville's politics in his later years. It will also help us better understand the relationship between the formal problems that have traditionally [End Page 1] occupied Melville's critics and the larger structure and ambition of Battle-Pieces as a whole.

Legal theorist and historian Bruce Ackerman has recently claimed that the ratification of the Civil War amendments presents the historian with a series of "legal dilemmas" and "paradoxes" that have been "repressed" and "ignored" by the nation's lawyers, judges, and law professors and to which the "last generation" of Reconstruction historians "has . . . turned a blind eye." 4 These paradoxes and dilemmas derive largely from the liminality of Southern states after the war: the task of Reconstruction required that Southern states be both integral parts of the Union's lawmaking authority and wholly subject to it. Battle-Pieces is devoted, I will argue, to exposing and evaluating the problems this liminality presented, the problems produced by what Abraham Lincoln called "the question of whether the seceded States, so called, are in the Union or out of it." 5 Like Lincoln and many others at the time, present historians tend to dismiss this question as a "pernicious abstraction" (L, 2:699), a philosophical conundrum irrelevant to the more important question of how the political crisis brought on by the War should be brought to its resolution. Battle-Pieces reveals, however, that this question, to use Ackerman's terms, has been more "repressed" than "ignored," and that the instrument of its repression is the idea of the law. Melville's Civil War poetry seeks both to reveal the ways in which the project of Reconstruction required that the Southern states assume a "chameleon" form and to explain how a political project based on such a paradox could be sustained. 6

Battle-Pieces dwells on the law's capacity to receive its content from domains of both political and moral authority, indicating that this dual quality makes the law uniquely suited to the task of suturing the potentially incompatible Reconstruction projects of restoring the Union (the positive-law solution to the "crime" of secession, requiring that Southern states count as part of the Union) and reforming the South (the higher-law solution to the problem of slavery, requiring that Southern states be seen as subject to the Union). The duality of the South's relationship to the Union is made intelligible by the duality inherent in the law...

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