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...