The Army Lawyer | Issue 6 2020View PDF

null Billy Budd, Sailor

 

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Billy Budd, Sailor

An Inside Narrative

 

“Struck dead by an angel of God! Yet the angel must hang!”1

The goals of military justice are timeless, as are the struggles of its practitioners. Every commander and judge advocate (JA) must balance the merits of an individual case and an individual accused with the need to uphold good order and discipline in their units. Billy Budd is Herman Melville’s final work, finished just before his death in 1891.2 People assume that it is the tale of a sailor unjustly condemned to death by harsh laws and an inflexible commander. However, if read through the military lens of the commander, it reveals how the goals of our military justice system sometimes conflict with personal emotions and the toll this can take on those tasked with enforcing it.

There is a concept in moral philosophy known as the problem of dirty hands. This posits that there are times when a leader must make a choice that, on its own, appears immoral or wrong.3 They do this either because there are no good choices or because their hands are tied by some countervailing consideration that is not immediately apparent.4 Truly good leaders know this and do not make these decisions lightly, but they do make them. They take this burden on themselves, and the more moral they are, the heavier this burden can be.5 The decision itself can appear the same externally, whether the leader making it is a moral person or not; but, an immoral person does not know or care about this struggle. It is through this internal recognition and conflict that a moral person appears.6 It can be an emotional burden to decide to prosecute a case, and it is rare to find an individual that never faced a moral dilemma in military justice. However, knowing that this internal struggle is a healthy thing—one that others throughout history have dealt with—can assuage one’s conscience and inform a JA’s advice to the command.

At its heart, Billy Budd is about this conflict. It is important for staff and brigade JAs, chiefs of justice, and anyone in a position to advise on military justice matters to read this short work and reflect on how its commander faces this dilemma. While this work is not new, it presents a conflict that will feel familiar to any JA who has had to make a recommendation on case disposition. It is not always an easy read, with its complex syntax and somewhat archaic allusions, but it is worth visiting or re-visiting for its many time-tested lessons.

Summary

Billy Budd takes place on the H.M.S. Bellipotent, a British warship sailing in the Mediterranean Sea in 1797. It was a dangerous time for the British. The French Directory, the prelude to the Napoleonic wars, threatened the English Channel.7 The last line of defense for Great Britain was their navy, which had its own trouble. Mere months before the events of the novel, a mutiny broke out over sailors’ treatment at Spithead on the southern coast of England, followed by a second mutiny of the fleet in the Nore—the anchorage at the mouth of the Thames River.8 Together, these involved almost one-third of the entire Royal Navy.9 While the Navy eventually put down the mutinies, their shadow loomed large over everything that happened afterward. Commanders were constantly wary of another mutiny and took precautions at the slightest hint of discontent.10

Against that backdrop, the H.M.S. Bellipotent is short of crew, so they stop a merchant ship. On the ship, which is conveniently named the Rights-of-Man, they forcibly enlist—or “impress”—its best sailor, Billy Budd.11 To heighten the fall to come, the author describes him as the “peacemaker” of the ship, almost saintly in his innocence and good nature, and universally beloved by his fellow sailors.12 He takes his impressment in stride, with an “uncomplaining acquiescence, all but cheerful,” and is soon popular on his new ship as well.13 His trust in others and lack of guile borders on naiveté, but his only real flaws are a stutter that can arise when under stress and a fear of corporal punishment.14 Melville creates Billy as a pure and simple paragon of innocence, which will highlight the sense of apparent injustice when the law treats him like everyone else.

While on the Bellipotent, Billy begins to draw the ire of the master-at-arms, a petty officer charged with maintaining order, named John Claggart.15 Claggart is everything that Billy is not. He is smart; but, due to his “evil nature,” he is conniving and dishonest.16 He hates the innocence in Billy and conspires to frame him for mutiny by making false accusations to the captain, Edward “Starry” Vere.17

Captain Vere is an honorable, exceptional officer, “a sailor of distinction even in a time prolific of renowned seamen.”18 Like many of the commanders in today’s military, he is intelligent, well-read, contemplative, and is the equal of Admiral Horatio Nelson as a fighter.19 Vere is the kind of commander that most people would want and that most JAs would want to advise. He thinks about the second- and third-order effects of his decisions and does not allow emotions to make decisions for him. He recognizes the burden of command and does not take it lightly. If he has a flaw, it is that he can sometimes be too removed and pedantic at times,20 but even this will mainly serve to allow him to articulate the rationale for his actions towards Billy.21 In short, he is the perfect prism to view the competing emotions and decisions made in pursuit of “justice.”22

Vere is too good a judge of character to believe Claggart’s lies, but the accusation still causes Billy to stutter.23 Captain Vere tries to comfort Billy, but in a panic at not being able to defend himself verbally, Billy involuntarily strikes out at the much smaller Claggart and kills him with one blow.24 Captain Vere never believes that Billy did this intentionally. However, he knows that he must convene a court-martial to decide Billy’s fate. He calls a panel of three officers into the cabin.25 Captain Vere serves as the convening authority, trial counsel, defense counsel, and judge as he struggles with what to do with Billy Budd. Billy’s character is so pure that as soon as Claggart dies, Captain Vere’s first words are to equate Billy with an “angel.”26 His second words are, “Yet the angel must hang.”27

The Trial

The trial of Billy is the heart of the novel, and the dialogue between Captain Vere and the panel would be familiar to anyone who has struggled with the many dimensions of military justice. Captain Vere, or any commander in a similar situation, must consider three dimensions of the case. First, the strictly legal reading of the law must be considered. The commander or their legal advisor must know the elements of the crime, the evidence available, and the likelihood of a successful prosecution. Next to be considered is the effect of the crime and disposition on good order and discipline, balanced by the rights of the accused and the particularized facts of the case. The final dimension is the personal conscience of the commander, and whether their responsibilities under the law allow them to exercise it, or if they will be forced to dirty their hands. Captain Vere considers each in turn.

The Legal Considerations

From a legal standpoint, Billy stands condemned. The applicable law states, “If any…[p]erson in the Fleet, shall strike any of his Superior Officers…on any Pretense whatsoever, every such Person being convicted of any such Offense, by the Sentence of a Court Martial, shall suffer Death.”28 There is no appeal, no discretion, no excuse, or mitigation. At this time, and under this regime, it is a strict liability crime to so much as strike—much less kill—a petty officer like Claggart. After all, it carries a mandatory sentence of death. Both Melville and Captain Vere are clear that Billy had no intent to injure or kill anyone.29 Morally, Billy is blameless. His act was involuntary, and Claggart’s death seems almost to be an act of god. On the other hand, Claggart had the evilest intentions. He had schemed and lied to his commanding officer, and if they had believed him, it would have resulted in Billy’s execution. In effect, Claggart had attempted to murder Billy by perverting the justice system. Yet, under the strict military code of the time, “innocence and guilt personified in Claggart and Budd in effect changed places.”30 Some readers may become bogged down in the legal minutia of British naval law and procedure, but let us accept this plain reading of the text for our purposes.31 The law condemns Billy.

The Military Justice Considerations

Captain Vere is not, however, a mindless “martinet.”32 He can be formal and pedantic but is also thoughtful and does not end his analysis at this superficial level. Captain Vere knows that he has a duty to maintain good order and discipline on his ship. Remember, this was “close on the heel of the suppressed insurrections,” and the ship is deployed during a time of war, so the need to maintain discipline is paramount.33 He knows firsthand what happens if authority is lost, and the mutinies remain fresh on his mind.34 This responsibility lies on his shoulders as the commander.

Captain Vere also knows that Billy is a sympathetic figure with compelling mitigating circumstances. Vere shares the panel’s compassion for Billy; for he, too, feels conflicted. He tells the court-martial that, most likely, a civilian court would free Billy.35 However, in their current situation, they have concerns that do not apply in the civilian world. Civilian law is not concerned with enforcing discipline. It does not have the same urgency as a court-martial where, at any moment, the enemy may be sighted. The same officers of the court may have to order sailors to their deaths, and the discipline enforced by the court ensures they will obey the orders without hesitation. This dual purpose—justice and discipline—is one of the defining features of military justice. Captain Vere recognizes this and knows the impact of leniency on Billy. Vere says that the hundreds of sailors on board would never understand why he did not punish Billy and would see it only as weakness. The sailors would “think that we flinch, that we are afraid of them.”36 This would be “deadly to discipline.”37

Personal Considerations

At this point, we know that—under a strict legal reading—Billy is guilty, and the proper sentence is death. Practical considerations also argue for death, as anything less risks indiscipline and mutiny; however, the officers still struggle with their personal consciences. They are clearly sympathetic toward Billy and have to choose between their personal feelings and duties as officers. Sensing that the court-martial is struggling with this moral dilemma, Vere lays out what he sees as their duty. His reasoning comes from the hard-earned knowledge gained from solitary “studies, modifying and tempering the practical training of an active career.”38 As a moral leader who knows the burden of dirty hands, he does not come to his conclusion lightly. This is not the easy way out or the simple solution, and he knows this from his long experience.

Vere tells them that under a simple natural law, they could follow their personal preferences and acquit Billy.39 However, when they accepted a commission, they became agents of the State, entrusted with enforcing that State’s laws. They may disagree with the policy, but it is their duty to carry it out. Captain Vere tells his fellow officers that “our vowed responsibility is this: That however pitilessly that law may operate in any instances, we nevertheless adhere to it and administer it.”40 There are times when personal feelings and judgment are encouraged, and there are times when discretion cannot be allowed. Vere knows that can be a heavy burden. However, he has come to terms with his decision and knows that it is his duty to ensure that the law is faithfully enforced. In taking this burden on himself, Vere dirties his hands and becomes the tragic hero of the novel.41 He ends his plea to the court-martial by hoping that even Billy “would feel even for us on whom in this military necessity so heavy a compulsion is laid.”42 They duly sentence Billy to hang at dawn.

Lessons for Today

Did Vere make the right decision? The text gives no clear answer. Melville seems to have purposely made it impossible to come down definitively on one side or the other.43 Due in large part to this inscrutability, critics have read the work as everything from a critique of political revolution, to a commentary on natural law, to an acceptance of lost innocence.44 However, when seen through the narrower lens of military justice, some clear lessons become apparent.

First, commanders—and the JAs who advise them—have a dual duty to both punish wrongdoers and use the military justice system to enforce good order and discipline. The non-binding disposition guidance issued in conjunction with the Military Justice Act of 2016 states that “the military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members.”45 It goes on to list factors that a commander should consider in disposing of a case. The first factor is the “mission-related responsibilities of the command.”46 Here, this was a warship, deployed in an active warzone. The second factor is “whether the offense occurred during wartime,” which it did.47 The third factor is the “effect of the offense on…good order and discipline of the command.”48 As Captain Vere recognized, a sailor killing an officer, no matter how sympathetic, would have tragic consequences for the discipline of the ship, especially in a world where rumor and conjecture are faster than clear communication. It is only in the fourth factor that one arrives at the “circumstances of the offense.”49 Commanders have to make hard choices, which may sometimes be unpopular or seem harsh, knowing that they do this for a greater good.

Second, whatever one might feel about a particular policy or case, it is the commander’s duty to enforce the law fairly and faithfully. Commanders cannot choose which laws to enforce and which ones to ignore. Judge advocates cannot decide to change a rule of evidence if they disagree with it. We must obey legal orders and laws if we are to be a nation and military of laws, and it is not our place to nullify them. One of the inappropriate considerations in the disposition guidance is “the personal feelings of anyone authorized to recommend, advise, or make a decision as to disposition.”50 This clearly includes JAs and echoes Captain Vere’s admonishment that, as officers of the state, they cannot allow their personal feelings to interfere with their fair execution of the law.

Third, these principles are constant throughout time. Melville wrote Billy Budd in the late nineteenth century, about events in the late eighteenth century. In the early twentieth century, Major General Enoch Crowder51 defended the death sentences of three privates convicted of falling asleep while on duty in the trenches of World War I.52 The commander of the entire American force, General John J. Pershing, had personally insisted on the importance of automatic capital punishment for this conduct. Major General Crowder explained this harsh policy, saying that “under such circumstances no one could have been criticized for acceding to this urgent request and adhering to the principle handed down by all the fixed traditions of military law.”53 When clemency was eventually granted to the men, General Crowder recognized it as “the inevitable mental conflict that arises between the stern necessities of war discipline and the natural sympathy for men who have incurred the death penalty.”54 It was the same conflict that Captain Vere faced. In the twenty-first century, Secretary of Defense James Mattis recognized that the “military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members.”55 In a 2018 memo, Secretary Mattis told the entire military that commanders have a “duty to use it” and should not default to easier administrative solutions.56 The justice system can be part of “forging disciplined troops,” and commanders “must be willing to choose the harder right over the easier wrong.”57 This is advice that Captain Vere would have taken to heart.

While the principles underlying Vere’s decisions are timeless, we must also recognize that their application can differ over time. Our system is set up to enforce discipline while also protecting the rights of the accused. In Billy’s case—under the prevailing laws of the time—he was guilty, and capital punishment was mandatory. Today, this is certainly extreme; but, in context of the time and novel, it was acceptable. The modern equivalent would be a mandatory separation or automatic reduction that a convening authority may not agree with, but must abide by. While the relative weight given to individual rights versus good order and discipline has changed over time, commanders and senior attorneys can still struggle with their interplay today. These decisions have not gotten any easier over time.

In the novel, Billy does recognize the struggle within his commander that Vere hoped he would see. When they execute him, his last words are “God bless Captain Vere.”58 There is no mutiny, and as Vere had suspected, the rumors that got out among the fleet were that Billy had murdered an officer in cold blood.59 Even knowing this, the decision stayed with Vere. As a moral person, he recognized his dirty hands and paid an emotional toll. When he dies in combat, his last words are “Billy Budd.”60 He does not say this in remorse,61 as Vere knows he could have made no other decision. It is more for the heavy burden that made such a difficult decision necessary.

Conclusion

So, why should a JA read Billy Budd? First, as a work of fiction, the novel can delve into the thoughts and conflicts of its characters in a way that nonfiction often cannot. It can create worlds and dilemmas perfectly crafted to illustrate its moral choices in a timeless way. Aristotle, speaking about his own culture’s version of fiction, said that poetry is “more serious than history: in fact poetry speaks more of universals, whereas history of particulars.”62 There is importance and value in reading history and learning from the specific mistakes of those who came before, but there is nothing like great literature to demonstrate universal conflicts.

By virtue of the freedom afforded by fiction, Melville is able to show the reader the conflicted psyche of Vere in a way that a historian never could and that is still relevant today. Commanders and JAs must balance the demands of good order and discipline with individual Soldiers’ rights. They must do this dispassionately, without personal animus or bias. There are no easy answers. Melville recognized this by making his tale open to multiple interpretations. However, Captain Vere is the only one who has the experience and intellect to recognize what his sense of duty calls him to do, and he is the one with the ultimate responsibility to carry it out. Making these decisions and having this weight solely on one person’s shoulders can be a monumental undertaking. Every commander and JA has the duty to carefully consider each circumstance with the gravity it is due. Decisions involving someone’s life or liberty are not, and should not be, easy. Good leaders reveal themselves by bearing this burden.63 They do not take the easy way out, nor do they allow personal feelings to dictate their actions. They recognize the higher duty, know the personal sacrifice of their actions, and are still willing to pay the cost. This has never changed, but reading literature that echoes this across the centuries can help us realize we are not alone. TAL

 


MAJ Choate is the Chief of Military Justice for 10th Mountain Division at Fort Drum, New York.



Notes

1. Herman Melville, Billy Budd, Sailor, in Billy Budd, Bartleby, and Other Stories 243, 299 (Penguin Books 2016) (1924). This is a recommended edition of the book because it is an authoritative version edited with the latest research to closely approximate Melville’s intent, and because it includes several helpful footnotes explaining the more esoteric references. It also includes several other of Melville’s short works. Id. at xxix.

2. Peter Shaw, The Fate of a Story, 62 Am. Scholar 591, 592 (1993) (discusses the convoluted history of the novel’s writing, loss after Melville’s death, rediscovery and publication in 1924, and changes made to the final draft).

3. Michael Walzer, Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Affs. 160, 161 (1973).

4. Id. at 160.

5. Id. at 167.

6. Id. at 168.

7. Simon Schama, A History of Britain: The Fate of Empire, 1776-2000, at 89 (2002).

8. Anthony G. Brown, The Nore Mutiny—Sedition or Ships’ Biscuits? A Reappraisal, 92 Mariner’s Mirror 60 (2006).

9. Id.

10. Melville, supra note 1, at 262.

11. Id. at 249.

12. Id. at 251.

13. Id. at 249.

14. Id. at 256, 270.

15. Id. at 274.

16. Id. at 277.

17. Id. at 288.

18. Id. at 262.

19. Id. at 265.

20. Id.

21. Richard A. Posner, Comment on Richard Weisberg’s Interpretation of “Billy Budd,” 1 Cardozo Stud. L. & Literature 71, 71, 76 (1989).

22. But see Byron J. Calhoun, Captain Vere as Outsider and Insider: Military Leadership in Billy Budd, Sailor, 21 War Literature & Arts 1, 2 (2009) (arguing that Vere was lacking in many of the skills required of a modern military leader in a more general sense).

23. Melville, supra note 1, at 298.

24. Id.

25. Id. at 300.

26. Id. at 299.

27. Id.

28. C.B. Ives, Billy Budd and the Articles of War, 34 Am. Literature 31, 32 (1962).

29. Melville, supra note 1, at 304.

30. Id. at 301.

31. See, e.g., Ives, supra note 28 (asserting the law did not actually condemn Billy). But see Posner, supra note 21 (stating that Vere was correct in his judgement).

32. Posner, supra note 21, at 76.

33. Melville, supra note 1, at 301. See generally Posner, supra note 21.

34. Melville, supra note 1, at 302.

35. Id. at 309.

36. Id. at 310.

37. Id. See generally Posner, supra note 21, at 77.

38. Melville, supra note 1, at 307.

39. Id. at 308.

40. Id.

41. See Eugene Goodheart, “Billy Budd” and the World’s Imperfection, 114 Sewanee Rev. 81 (2006); Ralph W. Willett, Nelson and Vere: Hero and Victim in Billy Budd, Sailor, 82 PMLA 370 (1967).

42. Melville, supra note 1, at 310.

43. Calhoun, supra note 22.

44. See Gregg Crane, The Hard Case: Billy Budd and the Judgment Intuitive, 82 U. Toronto Q. 889 (2013) (arguing that the story advocates for a more intuitive and less values-based judgement). See also Philip Loosemore, Revolution, Counterrevolution, and Natural Law in Billy Budd, Sailor, 53 Criticism 99 (2011) (arguing that the story illustrates the danger of violence on the part of both the oppressed and their oppressors). See generally Shaw, supra note 2 (summarizing some of the main themes of criticism of the story, and how they have changed over time).

45. Manual for Courts-Martial, United States, app. 2.1, ¶ 2.1 (2019).

46. Id. ¶ 2.1(a).

47. Id. ¶ 2.1(b).

48. Id. ¶ 2.1(c).

49. Id. ¶ 2.1(d).

50. Id. ¶ 2.1(b).

51. At the time of these events, Major General Enoch Crowder was the U.S. Army Judge Advocate General.

52. Major General Enoch Crowder, War Department, Military Justice During the War 10 (1919).

53. Id.

54. Id. at 11.

55. Memorandum from Sec’y of Def. to Sec’ys of Mil. Dep’ts et al., subject: Discipline and Lethality (13 Aug. 2018).

56. Id.

57. Id.

58. Melville, supra note 1, at 319.

59. Id. at 325.

60. Id.

61. Id.

62. Silvia Carli, Poetry is More Philosophical than History: Aristotle on Mimesis and Form, 64 Rev. Metaphysics 303, 303 (2010) (quoting Aristotle).

63. Walzer, supra note 3, at 168.

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