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Billy Budd and Capital Punishment: a Tale of Three Centuries Author(S): H Billy Budd and Capital Punishment: A Tale of Three Centuries Author(s): H. Bruce Franklin Source: American Literature, Vol. 69, No. 2 (Jun., 1997), pp. 337-359 Published by: Duke University Press Stable URL: http://www.jstor.org/stable/2928274 Accessed: 21/10/2010 08:13 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=duke. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. 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]. Duke University Press is collaborating with JSTOR to digitize, preserve and extend access to American Literature. http://www.jstor.org H. Bruce BillyBudd and Capital Punishment: A Tale of Franklin ThreeCenturies Has anywork of American literature generated moreantithetical and mutuallyhostile interpretation than Herman Melville'sBilly Budd, Sailor? And all thebattles about the moral and politicalvision at theheart of the tale swirl around one question:Are we supposedto admireor condemnCaptain Vere for his decisionto sentenceBilly Budd to deathby public hanging? 1 Somehow, astonish- inglyenough, nobody seems to havenoticed that central to thestory is thesubject of capital punishment and its history. This is trueeven in the ten essays constitutingthe firstnumber ofCardozo Studies in Law andLiterature, which was devotedto Billy Buddbecause-in thewords of law professor Richard H. Weisberg-it is "thetext that has cometo 'mean' Law andLiterature. "2 The closest encounterwith the issue of capital punishment inthese essays or else- wherecomes from Weisberg's antagonist, Judge Richard A. Posner ofthe United States Court of Appeals for the Seventh Circuit (and a self-styled"new critic"), who condemns those who "condemn Vere's conduct"as mere"liberals" who are "uncomfortablewith authority, includingmilitary authority, and hate capital punishment" ("most lit- erarycritics are liberals,"adds Posner).According to thejudge, "we mustnot read modern compunctions about capital punishment into a storywritten a centuryago. "3 Yetduring the very years that Melville was composingthe story- 1886to 1891-nationaland international attention was focusedon the climaxof a century-longbattle over capital punishment unfolding in thevery place where Melville was living-NewYork State. Why have we overlookedsomething so obvious?Is it because we ignorethe AmericanLiterature, Volume 69, Number2, June1997. Copyright C) 1997by Duke UniversityPress. 338 AmericanLiterature historyof capitalpunishment in the nineteenthcentury, including itsprofound influence on Americanculture?4 Or havewe, who have been scrutinizingthis story within the post-World War II cultureof thesecond half of the twentieth century, become desensitized to the implicationsof the issue that were so manifestto nineteenth-century Americans?In anycase, ifwe do contextualizeBilly Budd within the Americanhistory of capitalpunishment and its bizarreoutcome in NewYork State during the years 1886 to 1891,the storytransforms beforeour eyes. IfBilly Budd had been published in 1891,when Melville wrote "End ofBook" on thelast leafof the manuscript, few readers at thetime couldhave failedto understandthat the debatethen raging about capitalpunishment was centralto thestory, and to thesereaders the story'sposition in thatdebate would have appeared unequivocal and unambiguous.Billy Budd derivesin partfrom the American move- mentagainst capital punishment. It dramatizeseach ofthe crucial argumentsand conceptsof that movement. And it bringsinto vivid focusthe key issues of the contemporaneous debate: Which offenses, ifany, should carry the death penalty? Does capitalpunishment serve as a deterrentto killingor as an exemplarymodel for killing? What are the effectsof public executions? Is hanginga methodof execu- tionappropriate to a civilizedsociety? Is an impulsiveact ofkilling by an individualmore- or less-reprehensiblethan the apparently calmlyreasoned act ofjudicial killing? Is capitalpunishment essen- tiallya manifestationofthe power of the state? A ritualsacrifice? An instrumentof class oppression?A key componentof the cultureof militarism?Participants on all sidesof the debate seemed to agreeon onlyone thing: that the most appalling moment in the history of capi- talpunishment within modern civilization was thereign of George III in England. Whenthe officers whom Captain Vere has handpickedfor his drum- head courtappear reluctant to convictBilly and sentencehim to death,Vere forcefully reminds these subordinates that they owe their "'allegiance"'not to "'Nature,"'their "'hearts,"' or their"'private conscience,"'but entirelyto "'the King"' and his "'imperial[con- science]formulated in the code underwhich alone we officiallypro- ceed."'" The time is 1797, the king is George III, and the code to whichVere referswas knownin the nineteenthcentury as the "BloodyCode." BillyBudd and Capital Punishment 339 Duringthe reignsof the Tudors and Stuarts,fifty crimes had carriedthe deathpenalty, and morewere slowlyadded. The most spectacularincrease came later, during the reign of George III, when sixtyoffenses were appended to the death-penaltystatutes.6 By the last thirdof the nineteenthcentury, George III's BloodyCode had been universallyrepudiated and condemned,both in Englandand America.7As thebattle against capital punishment raged while Mel- villewas composingBilly Budd, partisans on bothsides agreedthat eliminatingmost of the code's capitaloffenses constituted one ofthe century'snotable achievements in humanprogress. Not surprisingly, opponentsof the deathpenalty cited the Georgiancode as barbaric and anachronistic,even for the eighteenthcentury. For example,a widelyreprinted 1889 article referred to "Georgian justice" as "a scan- dalto the rest of the civilized world, " and agreed with Mirabeau's ver- dictat thetime that" 'The Englishnation is themost merciless of any thatI haveheard or read of. "18 Evenadvocates of capital punishment celebratedthe progress away from the Bloody Code, pointing out that by the early1880s capital offenses in Englandhad been reducedto "threeclasses" of deliberate murder, none of which included "crimes committedunder circumstances of great excitement, sudden passion, orprovocation. "9Articles favoring capital punishment published dur- ingthe late 1880s argued that the death penalty should certainly "be restrictedto murdercommitted with malice prepense, by a sane per- son, in resistingarrest, or in the commissionof anotherfelony." 10 BillyBudd, remember, is chargednot with murder but with striking "'his superiorin grade' "; "'Apartfrom its effect the blow itself is,' " as CaptainVere states, "'a capitalcrime"' under the Articles of War of theGeorgian code (272).Nobody on the ship believes the sailor acted withpremeditation or malicious-muchless murderous-intent,but Vere instructsthe courtthat they must disregard all questionsof intent(274). In the midstof the American Revolution against George III's im- perialregime there were some attempts to abolish capital punishment forall crimesexcept murder and treason. For example, Thomas Jeffer- son and fourother Virginia legislators drafted such a law in early 1777,but it was notconsidered until 1785, when it was defeatedby a one-votemargin in theHouse of Delegates.1" The mostinfluential legal act camein 1794,three years before the actionof Billy Budd, when the state of Pennsylvania became the first 340 AmericanLiterature to codifyinto law the innovative concept of "degrees" of murder. Capi- talpunishment was restrictedto murder in the "first degree," defined as "wilful,deliberate and premeditatedkilling. "12 Two yearslater, NewYork State reduced the number of capital crimes from thirteen to two-murderand treason-whilealso abolishingwhipping as a pun- ishmentfor any crime.13 In the ensuingdecades, state after state in theNorth and West followed the lead of Pennsylvania and New York in reducingcapital offenses, and the movement for complete abolition of thedeath penalty steadily gained momentum into the 1850s. Maine in 1837and New Hampshire in 1849passed moratoria on all executions; Massachusettslimited the deathpenalty to firstdegree murder in 1852;and one house of the state legislature voted to abolishthe death penaltyin Ohio (1850),Iowa (1851),and Connecticut(1853). Capi- tal punishmentwas abolishedaltogether in Michigan(1846), Rhode Island(1852), and Wisconsin (1853).14 Amongthe champions of the surgingcampaign for abolition were manyof the republic'scultural leaders, such as HenryWadsworth Longfellow,John Greenleaf Whittier, John Quincy Adams, Lydia Maria Child,Theodore Parker, Margaret Fuller, and HenryWard Beecher.The twogreat newspapers of New YorkCity were for de- cades editedby
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