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113 Billy Budd and Capital Punishment A Tale of Four Centuries h. Bruce FranKlin At present there are only two classes of the community who yet favor capital punishment and these are clergymen and prosecuting attorneys. —New York State Assemblyman Galen Hitt, 1890 No work of literature probes more deeply into the guts of capital punishment than Herman Melville’s Billy Budd, Sailor. Set in the last decade of the eighteenth century, finished just before the author’s death in the last decade of the nineteenth century, this novella has continued to provoke fierce controversies about its meanings ever since it was discovered in manuscript shortlyafter the First World War.Yet strangelyenough, amid all the competing interpretations of Captain Vere’s decision to sentence Billy Budd to death by public hanging, no previous writer seems to have noticed that the issues of capital punishment itself, as well as its history, are central to the story.1 Why not? The answer to this question reveals strange features of the cultural history of capital punishment and highlights the profound relevance of the story to twenty-first-century America. Look at the first issue of Cardozo Studies in Law and Literature, published in 1989 and devoted entirely to Billy Budd because—in the words of law professor Richard H.Weisberg—this is “the text that has come to ‘mean’ Law and Literature.”2 Yet even the ten essays that comprise this journal ignore the fundamental issues raised by capital punishment. About the only exception comes fromWeisberg’s antagonist, Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit, who reviles 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, who styles himself a “new critic” and who was later a prominent candidate for the U.S. Supreme Court.) According to Judge Posner, “we must not read modern compunctions about capital punishment into a story written a century ago.”3 Posner here expresses the historical myopia of late twentieth- and early twenty-first-century American culture that sees itself as more enlightened and progressive than the late nineteenth century about capital pun- 114 h. bruce franklin ishment. Quite to the contrary, most late nineteenth-century Americans would likely be appalled and amazed by the state of capital punishment in contemporary America, which added sixty new federal crimes punishable by death (in the Crime Bill of 1994) and where two thirds of the citizens consistently support not only the death penalty but also clamor for executions to be broadcast on television.4 During the very years that Herman Melville was composing Billy Budd— 1886 to 1891—national and even international attention was focused on the century-long battle to abolish capital punishment in America, then reaching a strange climax in New York, the very state where he was living. Why had we overlooked something so obvious? Is it because we were ignorant of the history of capital punishment in the nineteenth century, including its profound influence on American culture?5 Or had we become desensitized to the implications of the issue that were so manifest to nineteenthcentury Americans? In anycase, when we do contextualize Billy Budd within the American history of capital punishment and its bizarre outcome in New York 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. Indeed Billy Budd flows from—and within—that American movement against capital punishment. It dramatizes each of the crucial arguments and concepts of that movement. And it brings into vivid focus and contemporary relevance the key issues of the nineteenth-century 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 byan individual more—or less— reprehensible than the apparentlycalmly reasoned act of judicial killing? Is capital punishment essentially a manifestation of the power of the state? A...

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