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