Public Law & Legal Theory
Few American literary works have been the subject of as much academic commentary as has Billy Budd, Herman Melville’s unfinished final novel.1 Possibly no American novel has garnered more attention from those interested in the roles that law plays in understanding literature. To summarize what some regard as a novel immune to summary: Billy Budd is a guileless and winsome impressed crewman on board an English man o’ war in 1797. England is at war, and recent mutinies fill the navy with anxiety. Budd is prone to bouts of severe stuttering. John Claggart, the ship’s master-at-arms, brings a malicious charge of mutiny against Budd to Captain Edward Vere. Overwhelmed by his inability to respond verbally, Budd strikes Claggart and kills him. Vere seems fond of Budd, believes him innocent of the mutiny charge, and knows he struck Claggart without malice. Nevertheless, Vere appoints a summary “drumhead” court to try Budd. After testifying, Vere persuades a reluctant panel of judges to convict Budd and sentence him to hang. The execution occurs at dawn the next morning, as Budd proclaims, “God bless Captain Vere!”2
The story raises fundamental questions about the conflict between justice and military necessity. Budd is a good man who reacted violently but without bad intent to extreme provocation. Few would think he should die for what he did. The setting on an English warship in 1797 enhances the difficulty of evaluating Budd’s case. England was at war in 1797.3 Security concerns stood at an exceptionally high pitch. Two significant mutinies occurred in the ports of England, the first, in April, at the port of Spithead, and the second, more serious one, in May, at the port of the Nore.4 The events in the novel occur in the summer of 1797. At several points, the narrator of Billy Budd discusses the mutinies at the Nore and Spithead and their profound effect on the Navy.
Where did the law stand on Budd’s case? The novel itself offers two sources of positive law. The first is Vere’s description of the contemporary law governing the discipline aboard English ships, especially the 1749 Articles of War.5 Some who condemn Vere have questioned the reliability of his statements of the law. The second source is the anonymous narrator of the story, who describes the naval customs for a drumhead proceeding, and refers specifically to the celebrated 1842 case of the United States brig USS Somers. The captain of the Somers had summarily tried and executed three mutineers. A court of inquiry exonerated, and a court-martial subsequently tried and acquitted the captain and some of the brig’s officers.6 The case was the subject of public controversy for many years to come.
The earliest law and literature scholarship about Billy Budd drew a parallel to the events on the Somers and the ensuing legal proceedings.7 This perhaps was the result of the relation of the Somers case to Melville’s own life. Melville’s first cousin, Guert Gansevoort, was a first lieutenant on the Somers. Gansevoort helped suppress the mutiny, and participated in the decision summarily to hang the mutineers.8 The first extensive analysis of the questions raised by the 1749 Articles of War appeared in 1962, and found no legal fault in Vere’s actions.9
That scholarship changed dramatically twenty years later. Professor Richard Weisberg began publishing important work advancing new interpretations of the legal dimensions of Billy Budd, as well as of Vere’s character.10 Weisberg argues that there was neither a legal basis for the process of a summary trial for Budd, nor substantive grounds for executing him. Weisberg combines his legal analysis with a novel interpretation of the general background of the story and Vere’s actions. He concludes that Vere deceived the members of the drumhead court into convicting Budd and sentencing him to die. Vere did this, according to Weisberg, because secretly he resented Budd, whom he saw as realizing an ideal naval character that Vere knew he could never obtain.11 Among other supporters of Weisberg’s view that Vere abused the law,12 Robin West describes the conclusion by saying that Vere is a “murderer.”13
Others disagree with Weisberg.14 In particular, Judge Richard Posner objected to Weisberg’s analysis of both the applicable law and of Vere’s character.15 In Posner’s view, Budd was guilty of a capital offense, any irregularities in the trial notwithstanding. Posner also thinks that Weisberg’s assigning a malicious character and despicable motives to Vere is an implausible interpretation of the narrative.
We believe there is more to say about these disputes. We examine three types of evidence: First, as Melville situates Billy Budd in the immediate aftermath of the mutinies of Spithead and the Nore, collectively known as The Great Mutiny, and the novel repeatedly refers back to those events, we begin with a historical review of “The Great Mutiny.” That background provides greater reason to credit the arguments of Vere, contrary to his critics. Second, while accepting for purposes of argument Weisberg’s claim that Vere’s statement of the law might be self-serving and suspect, we examine the relatively neglected statement of the relevant law and customs provided by the novel’s anonymous narrator. Third, as the novel specifically references the American Somers case, we examine that affair with an eye towards divining the relevant naval laws and customs.16
We conclude that the regime of naval discipline, as it existed both in England at the time of Budd’ s trial, and in the United States around the time of Melville’s composition, mandated neither Budd’s punishment nor his vindication. Budd’s case occupies the ground where judgment and discretion combine to determine the outcome. The circumstances on the Bellipotent, together with the background military and political circumstances of the time, show even more vividly the intractable difficulty of deciding Budd’s case. Billy Budd is not a tragic story about the need to cling to strict law even where intuitions of justice plead for a different outcome. It is not an outrageous example of the willful manipulation of law by an unaccountable authority maliciously bent on implementing a grave injustice. It is a story about confronting a case almost too hard to imagine. Vere may well have been mistaken, but he is not a murderer.
Richard H. McAdams & Jacob Corre, "Light on the Trial of Billy Budd", Public Law and Legal Theory Working Paper Series, No.684 (2018).