Law was a common trope in the writing of nineteenth century American authors.  The jurist Roscoe Pound referred to nineteenth century America as a “frontier society” that was struggling to define what law was.  Justice John Marshall was carving out the jurisdiction of the nation’s high court, even as Andrew Jackson challenged Marshall’s authority to do so.  (Jackson supposedly said, in regard to Worcester v. Georgia, that Marshall had made his decision, “now let him enforce it.”)  American jurisprudents were seeking to reconcile the contradictions between liberty and equality on the one hand—the ideals of the revolutionary generation—with the peculiar institution of slavery on the other.  The ethos of republicanism and the ideal of open discourse clashed with the legislative attempts among the Southern states to resurrect Roman code to validate slave laws, even as the judiciary, on all levels and in all states, attempted to incorporate British common law into a new setting with unique problems.  In short, law was in flux during the nineteenth century in America, and writers like Melville and Hawthorne picked up on this problem and gave it unique and sometimes troubling articulation in their literature.

The “facts” in Benito Cereno are strikingly similar to the facts in one of America’s most memorable cases: U.S. v. The Amistad, in which John Quincy Adams, among others, served as an attorney.  In both “cases,” slaves took over a slave ship, killed some of their white captives, and demanded that the remaining white shipmen return the boat to Africa.  Rather than doing that, however, the white shipmen steered a path toward America, where the unsuspecting crew of another ship, sensing something wrong, came to assist.  These fact patterns raise sensitive and disturbing questions about the law.  What is justice?  How should it be determined?  Which party is right, and what does it mean to be right or to have rights?  For that matter, what is the law to begin with?

In Benito Cereno, Cereno is the captain of the ship bearing slaves, and it is from Delano’s perspective that we learn, gradually, that a slave revolt has occurred and that Cereno is being held captive by Africans.  Delano is the captain of a different ship who has come aboard Cereno’s ship to assist Cereno’s apparently distressed crew.  The leader of the slave revolt, Babo, himself a slave, is always by Cereno’s side, thereby giving Delano the impression that Cereno has a loyal servant.  What Delano eventually discovers is that the slaves have spared the lives of only Cereno and a few other whites in order that these whites return the ship to Africa.

In Amistad as in Benito Cereno, the African slaves had been removed from their homeland, without their consent, and taken to a foreign land among alien peoples for the sole purpose of perpetual enslavement.  On the other hand, the white shipmen had, it could be argued, complied with the law of the sea in conducting these actions, and they were murdered by mutinying slaves.  The problem here is that neither side seems to represent an unquestionably moral or obviously right position.  Slavery is evil, but so is murder.  Melville, perhaps realizing the literary possibilities created by this tension, subjects this challenging set of circumstances to rigorous interrogation by way of a captivating narrative.

What makes Benito Cereno especially significant is its attention to race.  W.E.B. Dubois said that the problem of the twentieth century was the problem of the color line, but that statement applies equally to the nineteenth century.  It was, after all, race that permeated American legal discourse and that repeatedly undermined the principles on which American republican and revolutionary jurisprudence was based.  Jefferson, arguably the most paradoxical white early American figure on the issue of race, had set in motion ideals of natural law based in Newtownian rhetoric and Enlightenment thought, and it was this natural law jurisprudence, with its appeal to scientific taxonomies and classical liberal mantras, that seemed to fly in the face of laws regulating slavery.

The tension in Jefferson’s thinking about race, slavery, liberty, and equality did not, of course, end with Jefferson, but carried over into the next generations.  Law became so central to the institution of slavery in the nineteenth-century that William Wells Brown, a slave who found freedom in the North with the help of a Quaker, felt compelled to include several laws from the Southern slave codes as part of the appendix to his autobiography.  In light of federal laws such as the Missouri Compromise and the Fugitive Slave Act, and in light of U.S. Supreme Court decisions such as Dred Scott v. Sandford, slavery had become the most hotly contested issue that would, inevitably, have to be resolved, and from this race-conscious climate the Civil War transpired.  Benito Cereno, in this context, appears during the ideological warfare over race and can be situated alongside slave narratives, which themselves undertook to explore legal themes.  The point, in short, is that issues of law in the nineteenth century were entangled with issues of race, and Melville seems to exploit that entanglement toward the end of creating a complex, morally ambiguous tale.

Melville’s writing is no doubt colored by his experiences as a seaman, and he brings this experience to bear in another suggestive tale about law in Billy Budd, which also raises complicated issues of justice.  Budd, a stuttering but sturdy young man, leaves The Rights of Man for another ship captained by a man named Vere.  While on board, an officer named Claggart becomes jealous and resentful of Billy, and after staging a false mutiny and framing Billy in the process, Claggart has Billy come before Captain Vere for something of a hearing.  When Claggart accuses Billy of scheming to overthrow Captain Vere, Billy is so distressed that he punches and accidentally kills Claggart.  A trial ensues, and the verdict is that the law of the sea must stand, and Billy, regardless of the requisite mens rea required to convict a man in the courts of “the land,” must be put to death.

Billy, however, becomes, in death, a legend among sailors, and he is in this sense vindicated while the law is subverted.  This text, like Benito Cereno, challenges the supremacy and validity of the rule of law, and it is important to remember that rule of law rhetoric and ideology had gained much currency and were invoked by both North and South alike to authorize military actions during the Civil War. Not until the legal realists and the logical positivists of the late nineteenth and early twentieth century did rule of law rhetoric and its concomitant doctrines of legal science lose purchase among the nation’s leading jurisprudents, so Melville is in this respect ahead of his time.

It is sometimes said—for example, by F. O. Matthiessen—that Melville was inspired by Hawthorne, and that these two figures make up part of the anti-transcendental school of nineteenth century American literature.  Certainly Billy Budd and Benito Cereno have secured a position in the tradition of “realism,” as did, to some extent, Melville’s grotesque short story “Bartleby, the Scrivener,” which also addresses law at length, but which space will not permit me to address here.

Hawthorne’s concern with law had to do with a distinctly nineteenth century American tendency to want to shed the orthodoxies of the Old World.  Haunted by the Puritan past of his ancestors, Hawthorne’s attention to law was religiously inflected and highly critical of legalism: the rigid doctrine that the law must be enforced no matter its terms and no matter the cost.

In The Scarlett Letter, which takes place in Puritan New England, Reverend Dimmesdale is tormented by the guilt brought on by his sexual relationship with Hester Prynne, with whom he conceived an illegitimate child, Pearl.  The communal shaming and judgment of Prynne, to say nothing of the remorse and anxiety felt by Dimmesdale, ultimately bring about Dimmesdale’s death, and in life he is never able to enjoy, publically or otherwise, the mutual love between him and Hester and their child.  Here legalism is demonstrated to be oppressive and bound up with the strictures and sanctions that the New World was supposed to have escaped from.  A similar theme runs through The House of Seven Gables, when the nineteenth century characters are haunted by the legacy of their Puritan ancestor, Colonel Pyncheon.  That Judge Pyncheon—Colonel Pyncheon’s descendent—becomes the villain of the text suggests that, here as in The Scarlett Letter, law is tied to an archaic way of thinking from which, by implication, actual Americans (as opposed to fictional characters) ought to divorce themselves.

What brings together Melville and Hawthorne on the issue of law, then, is this idea that the past is a burden that is cloaked in legal vocabularies that ought not to obtain any longer.  In an era when law penetrated the lives of nearly all citizens, who, as well, spoke of the law in common conversation, Melville’s and Hawthorne’s texts must have raised disturbing and complex issues for readers.

I feel compelled to point out, by way of conclusion, that Hawthorne and Melville were far from the only writers generating works of fiction that hinged on the application of law to social problems in nineteenth century America.  All of the slave narratives show slaves negotiating legal problems and navigating through a law-saturated environment.  The fiction of Mark Twain is known for the presence of lawyers and law within it, so much so that jurists such as Cardozo and the aforementioned Roscoe Pound would reference Twain with the purpose of explaining the development of American law.

Just as American literati were trying to define and prescribe a uniquely American literature in the nineteenth century, so American jurisprudents were trying to define and prescribe a uniquely American legal system.  As both law and literature are text-based enterprises, I am not in the least astounded that they would have a dual valence in American history; nor I am surprised that American law schools are now finding it beneficial to teach literature in the context of law, while American English departments are finding it beneficial to teach law in the context of literature.  That Hawthorne and Melville, among others, are becoming part of the canon for legal education is, I think, a good thing for that profession, and hence a good thing for us all, since we are all subject, in some way, to the law.