Billy Budd And Capital Punishment Essay, Research Paper

Billy Budd and Capital Punishment:

A Tale of Three Centuries

(Reprinted from AMERICAN LITERATURE, June 1997; Copyright 1997 by H. Bruce Franklin)

Has any work of American literature generated more antithetical and mutually hostile interpretation than Herman Melville’s Billy Budd, Sailor? And all the battles

about the moral and political vision at the heart of the tale swirl around one question: Are we supposed to admire or condemn Captain Vere for his decision to

sentence Billy Budd to death by public hanging?(1) Somehow, astonishingly enough, nobody seems to have noticed that central to the story is the subject of capital

punishment and its history.

This is true even in the ten essays constituting the first number of Cardozo Studies in Law and Literature, which was devoted to Billy Budd because-in the words of

law professor Richard H. Weisberg-it is “the text that has come to ‘mean’ Law and Literature.”(2) The closest encounter with the issue of capital punishment in these

essays or elsewhere comes from Weisberg’s antagonist, Judge Richard A. Posner of the 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 “uncomfortable with authority, including military authority, and hate

capital punishment” (”most literary critics are liberals,” adds Posner). According to the judge, “we must not read modern compunctions about capital punishment into

a story written a century ago.”(3)

Yet during the very years that Melville was composing the story–1886 to 1891–national and international attention was focused on the climax of a century-long

battle over capital punishment unfolding in the very place where Melville was living-New York State. Why have we overlooked something so obvious? Is it because

we ignore the history of capital punishment in the nineteenth century, including its profound influence on American culture?(4) Or have we, who have been scrutinizing

this story within the post-World War II culture of the second half of the twentieth century, become desensitized to the implications of the issue that were so manifest

to nineteenth-century Americans? In any case, if we do contextualize Billy Budd within the American history of capital punishment and its bizarre outcome in New

York State during the years 1886 to 1891, the story transforms before our eyes.

If Billy Budd had been published in 1891, when Melville wrote “End of Book” on the last leaf of the manuscript, few readers at the time could have failed to

understand that the debate then raging about capital punishment was central to the story, and to these readers the story’s position in that debate would have

appeared unequivocal and unambiguous. Billy Budd derives in part from the American movement against capital punishment. It dramatizes each of the crucial

arguments and concepts of that movement. And it brings into vivid focus the key issues of the contemporaneous debate: Which offenses, if any, should carry the

death penalty? Does capital punishment serve as a deterrent to killing or as an exemplary model for killing? What are the effects of public executions? Is hanging a

method of execution appropriate to a civilized society? Is an impulsive act of killing by an individual more-or less-reprehensible than the apparently calmly

reasoned act of judicial killing? Is capital punishment essentially a manifestation of the power of the state? A ritual sacrifice? An instrument of class oppression? A

key component of the culture of militarism? Participants on all sides of the debate seemed to agree on only one thing: that the most appalling moment in the history of

capital punishment within modern civilization was the reign of George III in England.

When the officers whom Captain Vere has handpicked for his drumhead court appear reluctant to convict Billy and sentence him to death, Vere forcefully reminds

these subordinates that they owe their “‘allegiance’” not to “‘Nature,’” their “‘hearts,’” or their “‘private conscience,’” but entirely to “‘the King’” and his “‘imperial

[conscience] formulated in the code under which alone we officially proceed.’”(5) The time is 1797, the king is George III, and the code to which Vere refers was

known in the nineteenth century as the “Bloody Code.”

During the reigns of the Tudors and Stuarts, fifty crimes had carried the death penalty, and more were slowly added. The most spectacular increase came later,

during the reign of George III, when sixty offenses were appended to the death-penalty statutes.(6) By the last third of the nineteenth century, George III’s Bloody

Code had been universally repudiated and condemned, both in England and America.(7) As the battle against capital punishment raged while Melville was composing

Billy Budd, partisans on both sides agreed that eliminating most of the code’s capital offenses constituted one of the century’s notable achievements in human

progress. Not surprisingly, opponents of the death penalty cited the Georgian code as barbaric and anachronistic, even for the eighteenth century. For example, a

widely reprinted 1889 article referred to “Georgian justice” as “a scandal to the rest of the civilized world,” and agreed with Mirabeau’s verdict at the time that “‘The

English nation is the most merciless of any that I have heard or read of.’”(8) Even advocates of capital punishment celebrated the progress away from the Bloody

Code, pointing out that by the early 1880s capital offenses in England had been reduced to “three classes” of deliberate murder, none of which included “crimes

committed under circumstances of great excitement, sudden passion, or provocation.”(9) Articles favoring capital punishment published during the late 1880s argued

that the death penalty should certainly “be restricted to murder committed with malice prepense, by a sane person, in resisting arrest, or in the commission of another

felony.”(10) Billy Budd, remember, is charged not with murder but with striking “‘his superior in grade’”; “‘Apart from its effect the blow itself is,’” as Captain Vere

states, “‘a capital crime’” under the Articles of War of the Georgian code (272). Nobody on the ship believes the sailor acted with premeditation or malicious-much

less murderous-intent, but Vere instructs the court that they must disregard all questions of intent (274).

In the midst of the American revolution against George III’s imperial regime there were some attempts to abolish capital punishment for all crimes except murder and

treason. For example, Thomas Jefferson and four other Virginia legislators drafted such a law in early 1777, but it was not considered until 1785, when it was

defeated by a one-vote margin in the House of Delegates.(11)

The most influential legal act came in 1794, three years before the action of Billy Budd, when the state of Pennsylvania became the first to codify into law the

innovative concept of “degrees” of murder. Capital punishment was restricted to murder in the “first degree,” defined as “wilful, deliberate and premeditated

killing.”(12) Two years later, New York State reduced the number of capital crimes from thirteen to two-murder and treason-while also abolishing whipping as a

punishment for any crime.(13) In the ensuing decades, state after state in the North and West followed the lead of Pennsylvania and New York in reducing capital

offenses, and the movement for complete abolition of the death penalty steadily gained momentum into the 1850s. Maine in 1837 and New Hampshire in 1849

passed moratoria on all executions; Massachusetts limited the death penalty to first degree murder in 1852; and one house of the state legislature voted to abolish the

death penalty in Ohio (1850), Iowa (1851), and Connecticut (1853). Capital punishment was abolished altogether in Michigan (1846), Rhode Island (1852), and

Wisconsin (1853).(14)

Among the champions of the surging campaign for abolition were many of the republic’s cultural leaders, such as Henry Wadsworth Longfellow, John Greenleaf

Whittier, John Quincy Adams, Lydia Maria Child, Theodore Parker, Margaret Fuller, and Henry Ward Beecher. The two great newspapers of New York City

were for decades edited by prominent opponents of capital punishment, William Cullen Bryant of the New York Evening Post (1829-1878) and Horace Greeley of

the New York Tribune (1841-1872).(15)

In the slave South, however, George III’s Bloody Code had its distinctively American counterpart in the myriad of offenses defined as capital if committed by slaves.

Capital punishment as an instrument of class oppression has never been demonstrated more blatantly, an argument made frequently in the anti-death-penalty

literature. For example, in 1844 Universalist minister Charles Spear of Massachusetts cited the laws of the South as examples of the class content of capital

punishment and reasons for its total abolition. Georgia had a mandatory death sentence for the following crimes: “Rape on a free white female, if a slave. Assaulting

free white female with intent to murder, if a slave. Burglary or arson of any description contained in penal code of state, if a slave. Murder of a slave or free person of

color, if a slave.”(16) On the other hand, a white man in Georgia convicted of raping a slave woman or free woman of color faced a fine and/or imprisonment, at the

discretion of the court.(17) In Alabama, Spear noted, it was not a capital crime to kill a Black, but there was a mandatory death penalty for these offenses: “Murder,

or attempt to kill any white person. Rape, or attempt to commit, if a slave, free negro or mulatto. Insurrection or rebellion against the white inhabitants. Burglary.

Arson. Accessary [sic] to any of the above crimes.” Missouri provided that any “negro, mulatto, or free colored person” committing rape would be executed by

means of castration. Virginia had seventy-one crimes that were capital offenses for slaves but not for whites. These included burglary, forgery, stealing a horse or

harboring a horse thief, “wilfully setting fire to any stack or cock of wheat,” theft of money or goods “of the value of four dollars,” and of course raping or attempting

to rape a white woman.(18) In 1848, Virginia passed a new statute requiring the death penalty for blacks for any offense that was punishable by three or more years

imprisonment if committed by whites.(19)

The political content of capital punishment was also manifest in the legal codes that supported the institution of slavery. Pre-Civil War North Carolina had a

mandatory sentence of death for any person guilty of concealing a slave with intent to free him(20) or for “circulating seditious publications among slaves, second

offence.”(21) Georgia imposed a mandatory death penalty for “Circulating insurrectionary papers, either by a white, a negro, mustizzo, or free person.”(22) Missouri

law required mandatory execution for “Exciting insurrection among slaves, free blacks, or mulattoes.” Louisiana had a mandatory death penalty for anyone guilty of

“writings of a seditious nature.”(23)

From the mid 1850s through the Civil War, the movement to abolish the death penalty was overwhelmed by the movement against slavery.(24) When revived in the

late 1860s, the anti-capital-punishment movement often seemed to its adherents to be part of inexorable global progress. By 1889 they could cite the abolition of the

death penalty, by law or in practice, in Holland, Finland, Belgium, Prussia, Portugal, Tuscany, and Rumania.(25) To maximize shock value, they often focused on

what many regarded as the most barbaric aspects of capital punishment as practiced: public execution and hanging.

Public execution and hanging, which are integral to Captain Vere’s arguments for the necessity of killing Billy Budd, played a complex role in the debates of the last

third of the nineteenth century. As abolitionists emphasized the grotesque and sordid spectacles of public hangings, they often played into the hands of retentionists,

who saw that their best strategy for preserving the death penalty lay in cleansing it of the features almost universally condemned as loathsome remnants of a savage

past.(26)

Between 1833 and 1849, fifteen states abolished public executions,(27) and the movement to banish the practice altogether was unstoppable in the postwar decades.

From the late 1860s through the end of the century, hanging became the focal point of abolitionist and reformist arguments, and New York State became the pivotal

battleground. In his 1869 Putnam’s article “The Gallows in America,” Edmund Clarence Stedman (who was to become Melville’s most enthusiastic patron during the

period of Billy Budd’s composition) dwells on the horrors of hanging to convince readers, especially in New York, to abolish the death penalty entirely. “Let the

Empire State” join Michigan in ending capital punishment, Stedman declares, “and within ten years thereafter the gallows will be banished from every State in the

Union.”(28) Although he acknowledges that through “new scientific knowledge” some “painless mode of killing may be discovered,–as by an electric shock,” the

movement against the death penalty is growing “so rapidly that there is small likelihood of its modification by new forms.”(29) Stedman did not foresee how one of the

most bizarre chapters in nineteenth-century American technological and cultural history-the “Battle of the Currents”-would help preserve capital punishment in New

York and much of the nation deep into the twentieth century.

In the early 1880s Thomas Alva Edison and his Edison Corporation dominated the emerging electrification of urban America, especially in the New York City area.

Edison, however, was obsessively committed to direct current (DC), which could not be economically transmitted more than a mile or two. In 1886 George

Westinghouse’s newly incorporated Westinghouse Electrical and Manufacturing Company placed into operation the first alternating current (AC) generating station,

and demonstrated that AC could be transmitted over great distances. Meanwhile, Civil War hero General Newton Curtis, elected to the New York Assembly in

1884, had launched a major campaign to abolish the death penalty in New York State.(30) In 1885 Governor David Hill, anxious to preserve capital punishment

while recognizing the prevalent revulsion against hanging as a “remnant of the dark ages,” asked the legislature to create a commission to explore ways of carrying out

the death penalty “in a less barbarous manner.”(31)

In early 1887 Westinghouse moved into direct competition with Edison in New York City, touching off the Battle of the Currents.(32) Edison’s strategy was to

convince the public that AC was too dangerous for domestic use. So in 1887 he began a gruesome publicity campaign, inviting reporters, particularly from the New

York newspapers, to witness theatrically staged electrocutions of cats, dogs, calves, and horses. Edison even managed to get the members of the New York State

Commission to Investigate and Report the Most Humane and Practical Method of Carrying into Effect the Sentence of Death to attend his AC electrocution of

neighborhood dogs.(33) Edison’s main operative was one Harold P. Brown, who pretended to be acting independently, even after the New York Sun printed a

series of forty-five letters between Brown and Edison, as well as between Brown and the companies covertly acting for Edison.(34) In 1888, Brown staged at

Columbia College’s School of Mines an especially cruel execution of what the New York Herald called “a large mongrel Newfoundland”; the show produced

sensational accounts in the New York dailies and even a ballad.(35) Meanwhile, Brown was secretly conspiring with New York State prison authorities to purchase

three Westinghouse AC generators and set them up in prisons to be wired to a proposed “electric chair.”(36) The object was to arrange for human executions to be

conducted by electrocution with AC, thus terrorizing the population about the lethal menace posed by Westinghouse’s technology. From now on, according to

Edison and his cohort, condemned felons would not be hanged but “Westinghoused.”(37) Brown concluded a self-serving 1889 article in the North American Review

with these words: “strenuous efforts have been made to befog the public mind in order to prevent the use of the alternating current for the death-penalty, lest the

public should learn its deadly nature and demand that the Legislature banish it from streets and buildings, thus ending the terrible, needless slaughter of unoffending

men.”(38)

New York City’s newspapers charged into the Battle of the Currents. The New York Evening Post, no longer edited by ardent foe of capital punishment William

Cullen Bryant, favored electrocution. The New York Tribune and New York Times were both zealous allies of Edison and defenders of capital punishment.(39) The

Times in 1887 editorialized in favor of replacing hanging-which it characterized as sheer “barbarity”-with electrocution, which it envisioned as so quick and deadly

as to be a form of “euthanasia”; it urged “the State of New York to be the first community to substitute a civilized for a barbarous method of inflicting capital

punishment, and to set an example which is sure of being followed throughout the world.”(40) When the New York State Commission in January 1888 reported, to

no one’s surprise, in favor of electrocution, the Tribune and Times presented the recommendation as major and welcome news. Besides their news coverage, both

papers had days of lengthy editorials extolling electrocution. The Tribune declared that electrocution would be “a step toward humanity and decency.”(41) In another

editorial the same day, the Tribune evoked the almost universal repugnance against hanging: “The American people are practically unanimous in desiring that the

present cruel and clumsy method of execution shall be relegated among the other barbarisms of punishment.”(42) Both newspapers also approved of the

recommendation that all executions be held within the walls of a prison, with the number of witnesses-all to be selected by prison authorities-limited to twelve. The

only caveats, expressed by both papers, had to do with the Commission’s recommendations that the executed person’s body should “in no case be delivered to any

relative or other person whatsoever” and that any newspaper publishing an account of an execution other than “the statement of the fact that such convict was on the

day in question duly executed according to law at the prison” would be “guilty of a misdemeanor.”(43) The Times commended the intent of these prohibitions, which

was to keep the executed criminal from becoming “a hero” of the masses and prevent “such a display of sympathy with crime as was furnished by the funeral of the

Anarchists in Chicago.” The editorialist argued, however, that to “make a mystery” of an execution such as that of “the Chicago Anarchists” would be “proceeding

too much in the line of a despotic Government to be acceptable here.”(44)

During the next two and a half years New York was embroiled in legal suits and political maneuvering that brought national and worldwide attention to its struggles

with the issue of capital punishment. Lawyers for William Kemmler, the intended victim of the first electrocution, went to court to prevent this “cruel and unusual

punishment.” Edison merged his company into General Electric, partly to fight the legal suits filed by Westinghouse to keep its equipment from being used to

electrocute Kemmler. General Curtis submitted his second Assembly bill to outlaw capital punishment. The Tribune and the Times now began to impugn General

Curtis’s motives, implying that he was acting merely as a bribed agent of Westinghouse (charges refuted by his efforts years later as a member of Congress to abolish

the death penalty for the whole nation). The personal attacks on Curtis got fiercer when his bill to abolish capital punishment was passed by the New York Assembly

on May 1, 1890, by a vote of 74 to 29.(45)

The bill was not, however, approved by the State Senate. All the recommendations of the State Commission-including criminal penalties for publishing descriptions

of executions-now became the unchallenged law of New York State. So on August 6, 1890, William Kemmler became the first victim of the modern, civilized form

of execution by electricity.

The spectacle was hardly the “euthanasia” earlier promised by the Times. Indeed, the front page of the Times the following day violated the very law that had

mandated Kemmler’s electrocution by publishing a description of “the most revolting circumstances” that “placed to the discredit of the State of New York an

execution that was a disgrace to civilization.” The witnesses, “men eminent in science and in medicine,” were so physically “nauseated” by the gory spectacle that

“they almost unanimously say that this single experiment warrants the prompt repeal of the law.” The article ended by noting that the witnesses all acted “as though

they felt that they had taken part in a scene that would be told to the world as a public shame, as a legal crime.”(46)

One of the attending physicians selected to conduct the autopsy on Kemmler published in October 1890 an impassioned appeal to abolish the death penalty,

opening with an evocation of the “world-wide interest” in the execution: “When the harrowing details of the death chamber were tingled along the telegraph wires of

the country, and their impulses were throbbed through the cable, the entire civilized world viewed the scene with astonished horror.”(47) In an influential volume

linking capital punishment to war published in January 1891, Andrew Palm noted that the Kemmler execution was “denounced as horrible, brutal, atrocious, a

disgrace to humanity, etc. English editors were just as much shocked as their brethren on this side of the Atlantic, one London daily declaring that Kemmler’s

execution sent a thrill of horror around the globe.”(48)

It was in this context that Melville composed Billy Budd, which he began in 1886 and concluded in April 1891, eight months after Kemmler’s execution. Although

Melville’s contemporaries, who almost universally abhorred hanging, might have shuddered at Captain Vere’s instantaneous decision that Billy “‘must hang’” (232),

the story is carefully crafted to keep the means of execution from being a significant issue.

When he is hanged, Billy evinces none of the hideous agonies familiar to the crowds at public hangings and described with sickening detail in countless

nineteenth-century essays and books. There is not even the almost invariable muscular spasm or involuntary ejaculation. Chapter 26, obtrusively inserted between

Billy’s transcendent death and the sailors’ reaction, is devoted to a discussion of this perfect lack of motion. The purser suggests that this “’singularity’” must be

attributed to Billy’s “‘will power.’” In the surgeon’s response we can hear a parody of the debate transpiring in Melville’s New York about the most humane and

scientific way to kill a person: “‘In a hanging scientifically conducted-and under special orders I myself directed how Budd’s was to be effected-any movement

following the complete suspension and originating in the body suspended, such movement indicates mechanical spasm in the muscular system. Then the absence of

that is no more attributable to will power, as you call it, than to horsepower’” (321-22). Admitting to the purser that this “‘muscular spasm’” is almost “‘invariable,’” the

surgeon acknowledges “‘I do not, with my present knowledge, pretend to account’” for its absence: “‘Even should we assume the hypothesis that at the first touch of

the halyards the action of Budd’s heart, intensified by extraordinary emotion at its climax, abruptly stopped-much like a watch when in carelessly winding it up you

strain at the finish, thus snapping the chain-even under that hypothesis how account for the phenomenon that followed?’” (323).

The purser then asks, “‘was the man’s death effected by the halter, or was it a species of euthanasia?’” “‘Euthanasia,’” replies the surgeon, has dubious “‘authenticity as

a scientific term’” (324). Though it may outwardly resemble the “euthanasia” the New York Times had erroneously predicted for electrocution, Billy’s death by

hanging clearly transcends not only the surgeon’s scientific understanding but also the debate about the modalities of capital punishment swirling around the

composition of the story.

More profoundly relevant to Billy Budd are the terms of the debate about the fundamental issue of capital punishment itself. Indeed, the essence of the issue

structures the story.

We witness two killings aboard H.M.S. Bellipotent. One comes from the impulsive, involuntary fatal blow Billy Budd strikes to the forehead of Claggart. The blow is

partly in response to Captain Vere’s exhortation to the stammering Billy, “‘Defend yourself!’” Vere recognizes that Claggart has been “‘Struck dead by an angel of

God!’” and he and his drumhead court all acknowledge that Billy acted without malice, forethought, or any murderous intent. The other killing is carried out under

cover of law, after reasoned argumentation, and by the state acting through the agency of Captain Vere and his officers.

Which of these two acts constitutes murder? Budd is not even accused of murder. One question that underlies the twentieth-century discussion of Vere’s act might

be framed this way: Does it conform to the 1794 Pennsylvania definition of murder in the “first degree,” that is, “wilful, deliberate and premeditated killing”?

And this is precisely how the argument against capital punishment was framed during the years Melville was writing. The fact that hangings were conducted by the

state under cover of law did not, to opponents of the death penalty, absolve them from being murders. Indeed, the terms widely used for these killings were “legal

murders,” “legal killing,” and “murder by law.”(49) The following commentaries, published in 1890, could apply directly to the two killings on the Bellipotent:

[W]hen a criminal is judged, all the extenuating circumstances shall be taken into consideration. Were this rule observed, the victim of the law would seldom appear

in so bad a light as the government that passed the sentence. Let me illustrate the thought: a man commits a murder: the government in turn sentences the man to

death. Here we have two parties who have presumed to take a human life. . . . the question now arises, upon the shoulders of which party rests the greatest guilt? A

most solemn thought. There are many extenuating circumstances in the first instance, but what can be said in justification of the government?(50)

[C]apital punishment administered in any form is essentially a relic of a barbarous age. . . . [T]he State always acts with coolness and deliberation, while ninety per

cent. of her children slay their fellowmen in the frenzy of passion.(51)

Although Captain Vere has already decided that Billy “‘must hang’” before he convenes his drumhead court, the three officers he handpicks are quite reluctant to

convict and sentence the Handsome Sailor. In the trial, during which Vere acts as sole witness, prosecutor, and, ultimately, commander of the jury, he finds it

necessary to overwhelm his three subordinates with a deluge of arguments. One is precisely that they must “‘let not warm hearts betray heads that should be cool’”

(270).(52)

Vere makes his first argument while still in his role of witness (though later he tells the officers, “‘Hitherto I have been but the witness, little more’” [265]): “‘Quite aside

from any conceivable motive actuating the master-at-arms, and irrespective of the provocation to the blow, a martial court must needs in the present case confine its

attention to the blow’s consequence, which consequence justly is to be deemed not otherwise than as the striker’s deed’” (256). By arguing, especially in such

legalistic phraseology, that his court is not to consider extenuating circumstances or motive, Vere is underlining for readers in 1891 the fundamental injustice of the

proceedings. The three officers, in fact, are disturbed by this manifestation of “a prejudgment on the speaker’s part” (258). Later Vere reiterates, “‘Budd’s intent or

non-intent is nothing to the purpose’” (274).

As discussed earlier, Vere’s extended argument that the officers owe their allegiance not to “‘Nature,’” their “‘hearts,’” or their “‘private conscience,’” but entirely to

King George III and his “‘code under which alone we officially proceed’” would to any late-nineteenth-century audience be an emphatic reminder of the barbaric

Bloody Code for which Vere is acting as agent. Vere insists, in fact, that he and his officers must act merely as agents and instruments of that law: “‘For the law and

the rigor of it, we are not responsible. Our vowed responsibility is in this: That however pitilessly that law may operate in any instances, we nevertheless adhere to it

and administer it’” (270). To late nineteenth-century readers, this would serve as a conspicuous reminder of the horrors of Georgian justice from which nine decades

of reform had liberated both the United States and Britain. Each of Vere’s arguments, in fact, defends one or more of the most egregious features of the Georgian

code, features that had been repudiated by law in those nine ensuing decades.

Immediately after insisting that his officers may not consider “‘Budd’s intent or non-intent,’” Vere claims that they are taking too much time (a blatantly specious

argument, especially in light of the time