Lecture Outline: Billy Budd & the Law Prepared by Andrew N.

Adler, April 2002
I. History of Billy Budd criticism generally A. A great deal of vigorous debate 1. Bruck Franklin in 1997 began with, AHas any work of American literature generated more antithetical and mutually hostile interpretation than Billy Budd?@ 2. It=s true that the novella has generated remarkably divisive criticism. Some people attempt to explain this phenomenon by suggesting that Melville never finished the tale. More helpfully, one can conceive of the novella as indeterminate by design. 3. The Confidence Man: novelists justified in creating inconsistent characters B. 1950s: Aironic in mode, social or antireligious in content, rebellious in posture@ C. Early 60s - mid 80s: political criticism D. BB as philosophical (existentialism; phenomenology); spiritual autobiography, myth, Bible/sin/Christ; gay studies; feminist; psychoanalytical E. Withim, Phil, ABilly Budd: Testament of Resistance,@ 20 Modern Language Quarterly 115 (1959). 1. According to Weisberg, Aperhaps the most influential and representative of the early pro-Vere approaches,@ answering E.L. Grant-Watson, AMelville=s Testament of Acceptance,@ 6 New England Quarterly 319 (1933). Law & lit criticism A. 1995 poll: Billy Budd = #1 frequency in law & lit classes taught in law schools; next closest American fiction (only 1/3 as much): tie between To Kill a Mockingbird and Bartleby. (#4 = Measure for Measure; #5 = L=Étranger) B. Conflating questions of law and justice, or positing a simple polarity between natural justice and man-made (or positive) law C. Legal academics tend to fixate on Vere=s juridical dilemma to the exclusion of other textual problems. Eagerness to solve the novella=s interpretive problems by investigating extra-textual sources --- legislation, Shaw, history of various naval captains & executions D. Better approaches 1. Use lawyers= techniques & knowledge (textual & contextual interpretation of legislation; individual rights vs. safety of all in war; what state of mind is required for criminal conviction?; what constitutes honorable judging? what punishment is cruel & unusual under the circumstances?) 2. Conceive of jurisprudential changes as part of the culture of writing/reception Robert Cover, Justice Accused (1975) A. Uses Captain Vere as a type for earnest, well-meaning but formalist judges (including Lemuel Shaw) who upheld the Fugitive Slave Acts (which, like the 1

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Mutiny Act, Aadmitted none of the usual defenses, extenuations@ or appeals). As Billy struck because he couldn=t speak, so the alleged fugitive could not testify against his or her master or whites, generally. B. More legal history & theology than lit. Realizes that Vere is not Shaw, but sees close analogy. Was Melville thinking of Shaw? C. More importantly, relate Vere to real-life judges. Judges must interpret the law based on text, context, presuppositions (prejudices), social policy. 1. Shaw shouldn=t be labeled a formalist; neither should Vere 2. Criticism: In a way, Vere = anti-formalist: invokes Apolicy arguments@ --fear of mutiny, expediency D. Budd as Christ, ultimately revealed to Vere not as accuser but as comforter & salvation Robert Ferguson (1984) A. Also relates Melville=s fiction to broad changes in jurisprudence (increased formalism). B. Comparing the punishment scenes in White-Jacket and Billy Budd, noting that as the legal profession became more specialized during the intervening forty years, orthodox judges emphasized precision of language and began to distrust moral philosophy; hence Billy=s doom. C. Same criticism as above: Vere not purely formalist Lawry, Robert C., AJustice in Billy Budd,@ (1982; reprinted in 1996). A. Another approach featuring historical changes in jurisprudence, taking the statutory language out of the context of the story. What happened after the formalists? B. Vere adopted a Aplain meaning@ approach to statutory interpretation (Astriking an officer@ = death). Only in the 20th century did lawyers often supplant this approach with more sophisticated methods of construing ambiguous legislation. C. Using these modern interpretive techniques, Lawry then tries to resurrect Billy by arguing, ultimately unconvincingly, that Claggart acted outside his official capacity and that Billy did not act on any Apretense@ at all. (Abeing in the execution of his office@; lying = outside his office ??) D. Wrong in particulars, but current legal reasoning = way into thinking about justice. Lawyers have condensed centuries of experience with real life situations into various modes of thought & rules. This is the true merit of the following debate about Vere=s prosecutorial/judicial errors. A lay reader may feel uneasy about what Vere is doing C morally suspect. Lawyers codify this feeling, yet by justifying in institutional terms, transforms too. First, an oft-cited but slightly irritating article: Reich (1967) A. Another critic worried that actual law is too inflexible & uncaring. B. Assumes Melville believed that Vere applied the correct law. Vere faced circumstantial necessity; also, the law compelled him to execute Billy. Thus, the 2

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novella yields us a case where compromise is impossible and Awhere Vere, and we, must confront the imperatives of law,@ which recognizes objective actions but does not account for the context beyond the accused=s control. (The circumstances of each ease cry out for subjective treatment.) 1. Repeatedly cites the Dudley & Stephens case; for complexities of the case, see Prof. Simpson=s book & cookbook 2. * ALaw is unable to distinguish the human being from his act.@ C. But: law, especially criminal law, often probes what someone was thinking --mens rea. Objective manifestations of subjective state of mind. War-time is more harsh. D. Even martial law: if Billy had acted Ainvoluntarily@ or temporarily Ainsanely,@ he=d be acquitted. 1. Insanity --- Ives, Weiner, Marlene Longenecker, Rogin, Weisberg on Ainsanity@ of Budd, Vere, Claggart 2. {Rogin & Weiner also discuss Shaw=s important insanity opinion; BB did not act Ainvoluntarily@ --- these critics are not particularly well-versed in the law} E. Makes common mistake of making facile distinction of associating law with the world of cold reason and literary with some ill-defined world of emotion Ives (1962), Ledbetter (1972), Weisberg; Posner A. Procedural errors 1. But: sailor was tried in 1784 for striking boatswain, sentenced to be hanged, w/no recommendation for mercy, even though no indication that the boatswain died. B. Substantive errors 1. AIn execution of his office@ --- criticized above 2. AMutiny Act@ doesn=t apply to the navy a. Melville, aware of the Somers mutiny, knows something of the relevant law b. Fits in with Vere being too Aland-based@ (e.g., marine on panel) c. Vere talks about what would be done Aashore@ 3. Necessity: Government can hang sailors summarily if necessary to avert mutiny. a. Overrides the other provisions of the Articles of War. Captain also had customary powers (to whip more than maximum lashes, etc.). {See Kieran Dolin (1995) on custom} b. But: what danger? It is incredible that Athe people@ would think & act as Vere suggests; they love Billy & hate Claggart; officers could explain to them WHY leniency shown... C. Problem with procedural errors approach 1. Did Melville know that the Mutiny Act didn=t apply? a. Weisberg=s valiant defense: White-Jacket: detailed & informed 3

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discussion of articles of war; cites Justinian, Coke, Hale, Blackstone... 2. Why would Melville choose to impart such knowledge via the surgeon, a figure of uncertain authority whose opinions introduce more ambiguities than they resolve? (see below) a. Added details of naval law after he had determined his plot. Speculation that current events informed him. Surgeon’s role… 3. Were his readers sufficiently well versed in naval law to note Vere=s errors and perceive their implications? 4. If no Anecessity,@ then main drama and Vere=s complexity are significantly weakened. a. Lashing, or rejoining fleet, robs novella of tragic/religious/ philosophical overtones D. Another problem: Textual editing 1. Hayford-Sealts genetic/reading texts: left out chapter ALawyers, Experts, Clergy@... 2. Parker says criticism as of 1990 has wholly Aevaded the implications of the Hayford-Sealts Genetic Text,@ so much so that there is little point in citing individual essays. Says Cardozo symposium fails to address textual theory. 3. Concludes that Melville plainly was not sure what the law was and did not make sufficient effort to find out. 4. One response: a. Surgeon is of uncertain authority. His inclusion just increases the ambiguity. Sten (1975) on circumstantial necessity A. Assumes that Vere intentionally deviated from the law, but arguably justified. B. Even if Vere followed the positive law, doesn=t matter, b/c Billy is Anaturally innocent@ C. Story is meant to show the need to change forms to make them more human D. Shifting BB=s focus from the natural law/positive law conflict to the nature of expediency Yoder (2001) A. Defends Vere: military justice is severe, indeed pitiless, in times of war. Critics should recognize that Asacrifice is integral to warfare.@ (Billy as sacrificial Christ/Isaac figure.) In light of the Articles of War, it Ais flatly inconsistent with the text [of Billy Budd] to read Melville=s representation of a tragic but defensible act of military justice as an act of gratuitous cosmic cruelty.@ Recognizes that Vere prejudged the case and overbears with masterly rhetoric the inarticulate doubts of the other court members; and that no real threat of mutiny evidently surfaces. Yet in the wake of the Nore mutiny, Vere remained justified. Bruce Franklin (1997) A. At very time (1886-91) in very place (New York) --- huge capital punishment 4

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debate, involving questions such as: Does capital punishment serve as a deterrent? What are the effects of public execution? Is hanging a civilized method? Is capital punishment a ritual sacrifice? An instrument of class oppression? (slaves killed even after capital punishment abolished for white people) B. Strange but true: Edison submits that alternating current (A/C) is too dangerous; Westinghouse advocates A/C over D/C. Edison invited Nyers to witness theatrically staged electrocutions of animals. Passive about executing human beings with A/C, in order to convince the population about the lethal menace posed by Westinghouse=s technology. 1. Avital Ronell on Bell/Watson C. NY state: is electric chair more humane than hanging? Thrill of horror D. When Billy hanged, not even a muscular spasm... E. Franklin argues that Vere, by insisting on lawfulness of mandatory, summary hanging, is highlighting for most readers some of the most unpopular aspects of capital punishment. Readers would either stand vs. death sentence or consider it warranted only for first-degree murder or treason. 1. Reference to Amobs ashore@ 2. Also: no deterrence! Sailors worship Budd after death; discipline breached only after the hanging; thus, hanging increases chance of mutiny, not diminishes it. 3. Contemporary readers would be far more likely to wonder, as the surgeon and narrator do, whether Vere is insane. F. Franklin answers one obvious objection: war-time. He extensively quotes WhiteJacket (p. 353): Nelson didn=t need the Articles of War or corporal punishment G. Critique: 1. Can=t look at 1891 audience because not published until 1924 2. Then, as now, differing opinions about propriety of death sentence, especially during war time 3. No electric chair on board the ship (unless Mr. Jupiter Tonans, from another Melville short story, could intervene) 4. As addressed above, the Surgeon is not the only rational voice... nor is the story meant to be a mere treatise against capital punishment Douglas (1994) A. Narrator: not Melville? B. More on narrator in Weiner (1992): 1. Narrator deflects and even falsifies; he seems omniscient in places but lacks crucial information (p 153) Johnson A. Disciple of de Man, like Weisberg B. Thomas critique

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