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“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 assessment 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 1 Henry David Thoreau, “Civil Disobedience,” Collected Essays and Poems (New York: Library of America, 2001), 222; hereafter cited as Thoreau. L E V I A T H A N A J O U R N A L O F M E L V I L L E S T U D I E S 25 J O H N M A T T E S O N Despite Thoreau’s misgivings, prudence as a value held considerable appeal among Americans in the 1840s and 1850s, who were increasingly bewildered 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 historical 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...


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