Billy Budd and Law Bibliography

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Bibliography: Billy Budd & the Law Compiled & annotated by Andrew N. Adler, April 2002
1. Ascher, Allen, ANo Respecter of [email protected]: Law & the American Renaissance (Ph.D. dissertation, City University of New York, 1993).

Close reading of Billy Budd and several other works in the historical legal context: The novella invokes equity to counterbalance the supposed subordination of individual rights to the Apublic [email protected] demanded by the contemporary law. Like several other studies, this one relies too heavily upon facile dichotomies and upon Morton Horwitz=s exposition in The Transformation of American Law (1977). 2. 3. 4. Barsky, Robert, AThe Discourse(s) of Literature and the Law,@ in Carol Adlam et al. eds., Face to Face: Bakhtin in Russia & the West 372-85 (1997). Budd, John M., ALaw and Morality in Billy Budd and The Ox-Bow Incident,@ 35 College Language Association Journal 185 (Dec. 1991). Cover, Robert M., Justice Accused: Antislavery and the Judicial Process 1-7, 249-52 (1975).

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 Mutiny Act, Aadmitted none of the usual defenses, [email protected] or appeals). As Billy struck because he could not speak, so the alleged fugitive could not testify against his or her master or whites, generally. Theological slant. 5. Dolin, Kieran, ASanctioned Irregularities: Martial Law in Billy Budd,@ 1 Law/Text/Culture 129 (1995).

Canvasses various critiques (Cover, Thomas, Ives, Weisberg); notes distinction between formal prescriptions (statutes) and unwritten, customary practices. Insightfully draws attention to Foucault, especially regarding military orders and the emergence of disciplinary modes of control. Notes the strained notions of legitimacy inhering in martial law=s Asanctioned [email protected] Concludes that the novella comprises Aa story of law=s injustice which exposes law=s [email protected] 6. Domnarski, William, ALaw-Literature Criticism: Charting a Desirable Course with Billy Budd,@ 34 Journal of Legal Education 702 (1984). Helpful review article.



Douglas, Lawrence, ADiscursive Limits: Narrative and Judgment in Billy Budd,@ 27/4 Mosaic 141 (Dec. 1994). A clever exposition of parallel aesthetic and judicial problems featured in the novella.


Elison, Jami K., AThe Prosecution of Billy Budd (Ultra Vires of Positive Law),@ 35 Willamette Law Review 57 (Winter 1999) . Confused, derivative, and pointless.


Ferguson, Robert A., Law & Letters in American Culture 288-90 (1984).

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. 10. Franklin, H. Bruce, ABilly Budd and Capital Punishment: A Tale of Three Centuries,@ 69 American Literature 337 (1997).

During years that Melville composed the story, national and international attention focused on the climax of a century-long battle over capital punishment unfolding in New York State. Contends that most readers in 1891 would adopt an anti-death sentence stance and consequently an anti-Vere stance. 11. Goldstein, Tom, AOnce Again, Billy Budd is Standing Trial,@ New York Times, June 10, 1988, p. B6. On Weisberg-Posner debate. 12. 13. Gonyer, Jacqueline G., The Dilemma of Law and Justice in Melville=s Billy Budd (M.A. thesis, University of Texas at El Paso, 1986). Hayford, Harrison & Merton M. Sealts Jr. eds., Billy Budd, Sailor 1-12 etc. (1962).

Standard edition. Marks some of Vere=s legal errors but concludes that AMelville simply had not familiarized himself with the statutes of the [email protected] (p. 176). That assertion, however, seems refuted by Weisberg, Failure of the Word, pp. 209-10 nn. 32-35. Reaction in Parker (see below) and Sealts pp. 416-19: A[Contrary to Weisberg=s assumption,] Melville is inviting his reader to examine Vere=s actions in the context of the story as he himself conceived it, not with strict reference to naval law and [email protected] 14. Ives, C.B., ABilly Budd and the Articles of War,@ 34 American Literature 31 (1962). Excellent first examination of Vere=s use of the applicable existing laws. The Mutiny Act 2

applies to the army, not the navy. Vere should have referred the matter to the Admiralty, and even if he could have tried Billy aboard the Bellipotent, Vere committed a number of serious procedural errors. Vere=s actions suggest insanity: his self-disciplinary passion dominated his repressed love for Billy. 15. Johnson, Barbara, AMelville=s Fist: The Execution of Billy Budd,@ 18 Studies in Romanticism 567 (1979), reprinted in David H. Richter ed., The Critical Tradition 103756 (1989) and elsewhere.

A truly brilliant deconstructive reading. Judges assume the impossible task of resolving ambiguity into decision. Criticized in Thomas, ABilly Budd and the Judgment of [email protected] 16. Lawry, Robert C., AJustice in Billy Budd,@ 6 Gamut 76 (1982), reprinted in Bruce L. Rockwood ed., Law and Literature Perspectives 169-91 (1996).

Vere adopted a Aplain [email protected] approach to statutory interpretation (Astriking an [email protected] = death). Only in the 20th century did lawyers supplant this approach with more sophisticated methods of construing ambiguous legislation. 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 [email protected] at all. 17. Ledbetter, Jack W., AThe Trial of Billy Budd,@ 58 American Bar Association Journal 614 (1972).

While Billy was most likely guilty of striking an officer, he received an improper trial. Multiple procedural errors rendered the trial [email protected] 18. Longenecker, Marlene, ACaptain Vere & the Form of Truth,@ 14 Studies in Short Fiction 337 (1977).

ADespite the surgeon=s wonder, Vere is clearly not mad. But >reason= is shown to be inadequate, and between reason and madness lies a third alternative, imagination, first established by Melville in a characteristically symbolic [email protected] Less about law than about utilitarian order vs. liberating, flexible imagination. 19. Mailloux, Steven, AJudging the Judge: Billy Budd and >Proof To All Sophistries,[email protected] 1 Cardozo Studies in Law and Literature 83 (1989).

AAlong with Vere, we may desire >certain principles= that are >proof to all sophistries,= but no hermeneutic theory will provide them for [email protected] An example of Mailloux=s Arhetorical [email protected] 20. McKinney, Jill Louise, Herman Melville & the Law (Ph.D. dissertation, University of Pennsylvania, 1975). 3


McWilliams, John P., AInnocent Criminal or Criminal Innocence: The Trial in American Fiction,@ in Carl S. Smith, John P. McWilliams, & Maxwell Bloomfield eds., Law and American Literature: A Collection of Essays 71-80 (1983).

Tries to tackle too many problems in a few pages, without sophisticated analysis. Places Vere=s commitments in the context of debates about natural law, utilitarianism, Burke, Paine, and especially to O.W. Holmes, Jr.=s The Common Law (published 1882). Melville attacked the Articles of War in White-Jacket, but supposedly his Civil War writings displayed a more lawand-order perspective.1 Allegory in Billy Budd cannot reconcile with the historical or legal approach: How can Billy simultaneously represent the Handsome Sailor, Christ, Adam, and a sailor guilty of homicide? 22. Obuchowski, Peter A., ABilly Budd and the Failure of Art,@ 5 Studies in Short Fiction 445 (Fall 1978). Both art and law constitute artificial means for coping with injustice. 23. Parker, Hershel, Reading Billy Budd (1990).

Concentrates on consequences of the writing and editing process. The chapter-by-chapter close reading raises important questions for the main law & lit. interpretations (see primarily pp. 133-42). See also John Wenke, AComplicating Vere: Melville=s Practice of Revision in Billy Budd,@ 1 Leviathan: A Journal of Melville Studies 83 (1999). 24. Posner, Richard A., AComment on Richard Weisberg=s Interpretation of Billy Budd,@ 1 Cardozo Studies in Law and Literature 71 (1989), reprinted with variations in Law and Literature 165-81 (2d ed. 1998). See also AFrom Billy Budd to Buchenwald,@ 96 Yale Law Journal 1173 (1987) (reviewing Weisberg=s The Failure of the Word).

Soundly dismisses Weisberg=s most dubious claims (i.e., chap. 9 of The Failure of the Word) but often falls into a doctrinaire conservative reading. 25. Quirk, Tom, A>The Judge Dragged to the Bar=: Melville, Shaw, and the Webster Murder Trial,@ 84 Melville Society Extracts 1 (Feb. 1991).

Robert Midler declares that, AIronists, especially, find the nostalgic, apparently conservative narrator inconsistent with the Melville of 1850, although a reading of Battle-Pieces, Clarel, and John Marr would demonstrate that Melville=s ideas about history, progress, and egalitarian democracy underwent a major [email protected] beginning in 1856 and ending with the Civil [email protected] Several critics have tried to fit Billy Budd into the context of Melville=s literary career (Robert Midler ed., Critical Essays on Melville=s Billy Budd 13-14 (1989)).



See also Thomas, Cross-Examinations (pp. 202-06), for background on the exciting (and relevant) Webster trial. 26. Reich, Charles A., AThe Tragedy of Justice in Billy Budd,@ 56 Yale Review 368 (1967).

Melville believed that Vere applied the correct law. Vere faced circumstantial necessity, and moreover, the law compelled him to execute Billy. Thus, the novella yields a case where compromise is impossible and Awhere Vere, and we, must confront the imperatives of law,@ which imperatives recognize only objective actions and do not account for the context beyond the accused=s control. (The circumstances of each ease cry out for subjective treatment.) 27. Rogin, Michael P., AThe Somers Mutiny and Billy Budd: Melville in the Penal Colony,@ 1 Criminal Justice History 187 (1980).

The novella as [email protected] with striking resemblances to and inversions of the famous Somers mutiny affair (1842). See also Subversive Genealogy 298-300 etc. (1983), which contains a simplistic account of an antebellum Amove to legal [email protected] (in Shaw, Holmes, and others). Rogin inaccurately portrays other legal theories, too (e.g., Holmes= rulings on [email protected]). Criticized in Thomas= Cross-Examinations pp. 231-36; Thomas also discusses Somers at pp. 206-11, 214. 28. 29. 30. Rosenfeld, Mordecai, AMr. Justice Mars Presiding,@ New York Law Journal, Nov. 15, 1988, p. 2. Sealts, Merton M., AInnocence and Infamy: Billy Budd, Sailor,@ in John Bryant ed., A Companion to Melville Studies 416 (1986). Shapiro, Alan, AThe Flexible Rule: An Essay on the Ethical Imagination,@ 76 TriQuarterly 166 (Fall 1989).

Interesting essay rather than [email protected] scholarly criticism. Compares and contrasts Billy=s trial to that of Dan White, the San Francisco city supervisor who killed the mayor and Harvey Milk, a gay-rights activist and fellow supervisor. White=s lawyers raised the ATwinkie [email protected] (temporary insanity brought on by the sugar high from eating two delicious Twinkie7-brand products) and appealed to the jurors= anti-liberal and anti-gay biases. In acquitting White, the jury seemed to dwell on mitigating circumstances, while Vere refused to consider such mitigation. Concludes that although Vere=s character remains Aambiguous,@ the captain Acould hardly have acted [email protected] Praises the narrator=s Afidelity to the [email protected] Suggests that judges and jurors, like readers of literary works, must have open minds and sympathetic (ethical) imagination, while we should judge laws by their flexibility. 31. Sten, Christopher W., AVere=s Use of the Forms: Means and Ends in Billy Budd,@ 47 American Literature 37 (1975). Vere=s overriding interest in defending England pushed him to execute Billy to quell the 5

crew=s possible uprising. Vere Aclandestinely deviated from the forms or manipulated them... to insure the stability of his men and thence the safety of his [email protected] His heart-rending decision to hang Billy (whom for Sten remains Anaturally [email protected]) should make us Asensible of the price of [email protected] 32. Thomas, Brook, ABilly Budd and the Judgment of Silence,@ 27 Bucknell Review 51 (1983). Critique of Johnson=s article. 33. __________, ABilly Budd and the Untold Story of the Law,@ 1 Cardozo Studies in Law and Literature 49 (1989).

Reconciles natural rights doctrine and social order theories to demonstrate that both Vere and his [email protected] accept the same unnecessarily totalized notion of society. Concludes that Arights do not originate in a pre-social state of nature, nor do they derive from the authority of the state. Instead, they are inherent in membership in social groups, which are themselves a natural mode of human [email protected] 34. __________, ABilly Budd & Re-righting Legal History,@ Cross Examinations of Law and Literature 201-50 (1987). Excellent extended new historicist analysis. 35. Wallace, Robert K., ABilly Budd and the Haymarket Hangings,@ 47 American Literature 108 (1975).

Claims that the infamous 1887 trial and execution of four anarchist leaders influenced Melville. 36. Weiner, Susan, ALaw, Literature, and the Space Between: The Case of Billy Budd,@ in Law in Art: Melville=s Major Fiction & Nineteenth-Century American Law 139-66 (1992).

Useful discussion of narrator=s unreliability, ignorance, and selectivity; and of the insanity defense as developed by Justice Shaw and applied to Billy, Vere, and Claggart. But Weiner frequently oversimplifies the theory and mechanics of the law, makes illogical statements, and otherwise misses the mark. 37. Weisberg, Richard H., AHow Judges Speak: Some Lessons On Adjudication in Billy Budd with an Application to Justice Rehnquist,@ 57 New York University Law Review 1 (1982)@; restated with variations in The Failure of the Word: The Protagonist as Lawyer in Modern Fiction xv-xviii (preface to second printing); 133-76 (1984; second printing 19__); largely repeated, with variations, in Poethics 104-16 6

(1992) and in AAccepting the Inside Narrator=s Challenge: Billy Budd and the >Legalistic= Reader,@ 1 Cardozo Studies in Law and Literature 27 (1989). Discusses critics who fired the first sally against Vere=s questionable juridical maneuvers (C.B. Ives, Merlin Bowen, E.A. Dryden) . Then, impressively details Vere=s errors. See also the innumerable book reviews of Posner, Weisberg, and West. 38. West, Robin, ALaw, Literature, and the Celebration of Authority,@ 83 Northwestern University Law Review 977, 993-96 (1989). Excoriating Posner=s pro-Vere mentality. 39. 40. Westover, Jeff, AThe Impressments of Billy Budd,@ 39 Massachusetts Review 361 (1998). Yoder, Edwin M., Jr., AMelville=s Billy Budd and the Trials of Captain Vere,@ 45 Saint Louis University Law Journal 1109 (2001).

Defends Vere: military justice is necessarily severe, indeed pitiless, in times of war. Critics should recognize that Asacrifice is integral to [email protected] (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 [email protected] Recognizes that Vere prejudged the case and overbears with masterly rhetoric the inarticulate doubts of the other court members; and that no actual threat of insurrection surfaces (until Billy=s execution). Yet in the wake of the Nore mutiny, Vere remained justified.


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