Homage to Daniel Shays

by Gore Vidal

  The Gallery is a collection of “Portraits” and “Promenades”; a study of men and women brought together in one way or another by the fact of the Galleria and war. The characters, some shadowy, some startlingly brilliant, have sex, make love, lose themselves, find themselves. A young soldier retreats into visions of himself as Christ; a major in censorship builds himself a bureaucratic empire; a Catholic chaplain quibbles with a Protestant chaplain; a soldier grimly endures the VD ward and wonders how he could ever have loved the girl who put him there; and Momma, a genial Italian lady, presides over the Galleria’s queer bar, finding her charges mysteriously simpatico, quite unlike the other conquerors. Finally, it is not so much what these characters do as the effect that Naples has on them. To one it is the discovery of “the difference between love and Having Sex.” To another: “It seemed that in our lethargic and compassionate caresses we were trying to console each other for every hurt the world had ever inflicted.” To the demented visionary: “These people are all in search of love. The love of God, or death, or of another human being. They’re all lost. That’s why they walk so aimlessly. They all feel here that the world isn’t big enough to hold them—and look at the design of this place. Like a huge cross laid on the ground, after the corpus is taken off the nails.”

  In the classic tradition of northern visitors to the South, Burns is overwhelmed by the spontaneity of the Italians. Even their rapacity and cruelty strike him as being closer to some ideal of the human than the moral numbness of the Americans. He contrasts Italian delicacy in human matters with the harshness of our own soldiers and their pathological loathing of the “inferior” races which war has forced them to deal with. For the thousandth time in history, gross northern warriors were loose among the ancient civilization at the edge of the middle sea, and for Burns it was a revelation to realize that he belonged not to an army of civilized liberators but to a barbarian horde humanly inferior to the conquered.

  Burns’s style is energetic, very much that of the 40’s, with distracting attempts at phonetic spelling (“furren” for “foreign”) and made-up verbs (“he shrilled”). Burns’s ear for dialogue was not always true; his dislike of those speaking often came between him and accuracy. He was also sometimes operatic in his effects (penicillin hurled at the Galleria: symbolic revenge). But when he is good, the style has a compelling drive that displays the national manner at its best. “Their faces complemented one another as a spoon shapes what it holds,” thinks a character who has “contracted a bad case of irrelevance.”

  Of the well-known books of the Second War, I have always thought that only Burns’s record was authentic and felt. To me the others are redolent of ambition and literature. But for Burns the war was authentic revelation. In Naples he fell in love with the idea of life. And having obtained a sense of his own identity, he saw what life might be. That the vision was a simple one makes no difference. It was his. “There’ll be Neapolitans alive in 1960. I say, more power to them. They deserve to live out the end of their days because they caught on sooner than we how simple human life can be, uncomplicated by advertising and Puritanism and those loathsome values of a civilization in which everything is measured in terms of commercial success.” His indictment is now a cliché, but it struck a nerve twenty years ago. Also I suspect he never understood his own people very well; nor do I think he would have been so entirely pleased by the Neapolitans of 1960 who, in their relative affluence, have begun to resemble us. But the spirit of his revelation remains true. “For I got lost in the war in Naples in August 1944. Often from what I saw I lost the power of speech. It seemed to me that everything happening there could be happening to me. A kind of madness, I suppose. But in the twenty-eighth year of my life I learned that I too must die. Until that time the only thing evil that could be done to me would be to hurry me out of the world before my time. Or to thwart my natural capacities. If this truth held for me, it must be valid for everybody else in the world.”

  Burns hurried himself out of the world before his time. But he had had his moment. And now that the war we lived through is history, it seems to me plain that the novel he wrote about us is literature. Burns was a gifted man who wrote a book far in excess of his gift, making a near-masterpiece that will endure in a way he himself could not. Extreme circumstances made him write a book which was better than his talent, an unbearable fate for an ambitious artist who wants to go on, but cannot—all later work shadowed by the splendid accident. I suspect that once Burns realized his situation, he chose not to go on, and between Italian brandy and Italian sun contrived to stop.

  As for the man, Burns had the luck to know, if only briefly, what it was to be alive with all senses responsive to all things; able to comprehend another person and to share that truth which is “valid for everybody else.” Describing a soldier much like himself, even to the first name, Burns shows us a man discovering himself for the first time in the act of love on a hot August night. But then, love made, he is too keyed up to fall asleep, too restless with discovery; and so he is soothed and comforted in the dark, and the whispered Italian of his companion strikes the note of epitaph: “Buona notte e sogni d’oro….Dormi, John.”

  The New York Times Book Review, May 30, 1965

  SEX AND THE LAW

  In 1963, H. L. A. Hart, Oxford Professor of Jurisprudence, gave three lectures at Stanford University. In these lectures (published by the Stanford University Press as Law, Liberty and Morality) Professor Hart attempted to answer an old question: Is the fact that certain conduct is by common standards immoral a sufficient cause to punish that conduct by law? A question which leads him to what might be a paradox: “Is it morally permissible to enforce morality as such? Ought immorality as such to be a crime?” Philosophically, Professor Hart inclines to John Stuart Mill’s celebrated negative. In On Liberty, Mill wrote, “The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others”; and to forestall the arguments of the paternally minded, Mill added that a man’s own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right.

  Now it would seem that at this late date in the Anglo-American society, the question of morality and its relation to the law has been pretty much decided. In general practice, if not in particular statute, our society tends to keep a proper distance between the two. Yet national crisis may, on occasion, bring out the worst in the citizenry. While our boys were Over There, a working majority of the Congress decided that drink was not only bad for morals but bad for health. The result was Prohibition. After a dozen years of living with the Great Experiment, the electorate finally realized that moral legislation on such a scale is impossible to enforce. A lesson was learned and one would have thought it unlikely that the forces which created the Volstead Act could ever again achieve a majority. But today strange things are happening in the American Empire, as well as in the Kingdom across the water where Professor Hart detects a revival of what he calls “legal moralism,” and he finds alarming certain recent developments.

  In the days of the Star Chamber, to conspire to corrupt public morals was a common-law offense. Needless to say, this vague catchall turned out to be a useful instrument of tyranny and it was not entirely abandoned in England until the eighteenth century. Now it has been suddenly revived as a result of the 1961 case Shaw v. Director of Public Prosecutions. Shaw was an enterprising pimp who published a magazine called Ladies Directory, which was just that. Despite this useful contribution to the gallantry of England, Shaw was found guilty of three offenses: publishing an obscene article, living on the earnings of prostitutes, and conspiring to corrupt public morals. The last offense delighted the legal moralists. There was much satisfied echoing of the eighteenth-century Lord Mansfield’s statement, “Wh
atever is contra bonos mores et decorum the principles of our laws prohibit and the King’s Court as the general censor and guardian of the public morals is bound to restrain and punish.” As a result of the decision against Mr. Shaw, the possibilities of banning a book like Lady Chatterley’s Lover on the imprecise grounds that it will corrupt public morals (themselves ill-defined) are endless and alarming. Though various American states still retain “conspiring to corrupt” statutes, they are largely cherished as relics of our legal origins in the theocratic code of Oliver Cromwell. The last serious invoking of this principle occurred in 1935 when the Nazis solemnly determined that anything was punishable if it was deserving of punishment according “to the fundamental conceptions of penal law and sound popular feeling.”

  Defining immorality is of course not an easy task, though English judges and American state legislatures seem not to mind taking it on. Lord Devlin, a leader of the legal moralists, has said that “the function of the criminal law is to enforce a moral principle and nothing else.” How does Lord Devlin arrive at a moral principle? He appeals to the past. What is generally said to be wrong is wrong, while “a recognized morality is as necessary to society’s existence as a recognized government.” Good. But Lord Devlin does not acknowledge that there is always a considerable gap between what is officially recognized as good behavior and what is in actual fact countenanced and practiced. Though adultery in England is thought to be morally wrong, there are no statutes under which a man may be punished for sleeping with someone else’s wife. Adultery is not a legal offense, nor does it presumably arouse in the public “intolerance, indignation, and disgust,” the three emotions which Lord Devlin insists are inevitably evoked by those acts which offend the accepted morality. Whenever this triad is present, the law must punish. Yet how is one to measure “intolerance, indignation, and disgust”? Without an appeal to Dr. Gallup, it would be difficult to decide what, if anything, the general public really thinks about these matters. Without a referendum, it is anyone’s guess to what degree promiscuity, say, arouses disgust in the public. Of course Lord Devlin is not really arguing for this sort of democracy. His sense of right and wrong is based on what he was brought up to believe was right and wrong, as prescribed by church and custom.

  In the realm of sexual morals, all things take on a twilight shade. Off and on for centuries, homosexuality has aroused the triple demon in the eyes of many. But a majority? It would be surprising if it did, knowing what we now know about the extent—if not the quality—of human sexual behavior. In any case, why should homosexual acts between consenting adults be considered inimical to the public good? This sort of question raises much heat, and the invoking of “history.” According to Lord Devlin, “the loosening of moral bonds is often the first stage of [national] disintegration.” Is it? The periods in history which are most admired by legal moralists tend to be those vigorous warlike times when a nation is pursuing a successful and predatory course of military expansion, such as the adventures of the Spartans and Alexander, of Julius Caesar and Frederick of Prussia. Yet a reading of history ought to convince Lord Devlin that these militaristic societies were not only brutish and “immoral” by any standard but also startlingly homosexual. Yet what was morally desirable in a clean-limbed Spartan army officer is now punished in Leicester Square. Obviously public attitudes have changed since those vigorous days. Does that then mean that laws should alter as old prejudices are replaced by new? In response to public opinion, the Emperor Justinian made homosexuality a criminal offense on the grounds that buggery, as everyone knew, was the chief cause of earthquakes.*1

  With the decline of Christianity, western moralists have more and more used the state to punish sin. One of Lord Devlin’s allies, J. G. Stephen, in Liberty, Equality, Fraternity, comes straight to the point. Referring to moral offenders, he writes, “The feeling of hatred and the desire of vengeance are important elements to human nature which ought, in such cases, to be satisfied in a regular public and legal manner.” There is the case not only for capital punishment but for public hangings, all in the name of the Old Testament God of vengeance. Or as Lord Goddard puts it, “I do not see how it can be either non-Christian, or other than praiseworthy, that the country should be willing to avenge crime.” Yet Mr. Stephen also realizes that for practical purposes “you cannot punish anything which public opinion as expressed in the common practice of society does not strenuously and unequivocally condemn. To be able to punish a moral majority must be overwhelming.” But is there such a thing as moral majority in sexual matters? Professor Hart thinks not. “The fact that there is lip service to an official sexual morality should not lead us to neglect the possibility that in sexual, as other matters, there may be a number of mutually tolerant moralities, and that even where there is some homogeneity of practice and belief, offenders may be viewed not with hatred or resentment, but with amused contempt or pity.”

  In the United States the laws determining correct human behavior are the work of the state legislatures. Over the years these assemblies have managed to make a complete hash of things, pleasing no one. The present tangled codes go back to the founding of the country. When the Cromwells fell, the disgruntled Puritans left England for Holland (not because they were persecuted for their religious beliefs but because they were forbidden to persecute others for their beliefs). Holland took them in, and promptly turned them out. Only North America was left. Here, as lords of the wilderness, they were free to create the sort of quasi-theocratic society they had dreamed of. Rigorously persecuting one another for religious heresies, witchcraft, sexual misbehavior, they formed that ugly polity whose descendants we are. As religious fundamentalists, they were irresistibly drawn to the Old Testament God at his most forbidding and cruel, while the sternness of St. Paul seemed to them far more agreeable than the occasional charity of Jesus. Since adultery was forbidden by the Seventh Commandment and fornication was condemned in two of St. Paul’s memos, the Puritans made adultery and fornication criminal offenses even though no such laws existed in England, before or after Cromwell’s reign. As new American states were formed, they modeled their codes on those of the original states. To this day, forty-three states will punish a single act of adulterous intercourse, while twenty-one states will punish fornications between unmarried people. In no other western country is fornication a criminal offense. As for adultery, England, Japan, and the Soviet Union have no such statutes. France and Italy will punish adultery under special conditions (e.g., if the man should establish the mistress in the family home). Germany and Switzerland punish adultery only if a court can prove that a marriage has been dissolved because of it.

  In actual practice, the state laws are seldom invoked, although two hundred and forty-two Bostonians were arrested for adultery as recently as 1948. These statutes are considered “dead-letter laws” and there are those who argue that since they are so seldom invoked, why repeal them? One answer came in 1917 when a number of racketeers were arrested by the Federal government because they had taken girl friends to Florida, violating the Mann Act as well as the local fornication-adultery statutes. This case (Caminetti v. U.S.) set a dangerous precedent. Under a busy Attorney General, the “dead-letter laws” could be used to destroy all sorts of dissidents, villainous or otherwise.

  Rape is another offense much confused by state laws. During the thirties, out of 2,366 New York City indictments for rape, only eighteen per cent were for forcible rape. The remaining eighty-two per cent were for statutory rape, a peculiar and imprecise crime. For instance, in Colorado it is statutory rape if intercourse takes place between an unmarried girl under eighteen and a man over eighteen. In practice this means that a boy of nineteen who has an affair with a consenting girl of seventeen is guilty of statutory rape. All the girl needs to do is to accuse her lover of consensual relations and he can be imprisoned for as long as fifty years. There are thousands of “rapists” serving time because, for one reason or another, they were found guilty of sexual
intercourse with a willing partner.

  In nearly every state fellatio, cunnilingus, and anal intercourse are punished. Not only are these acts forbidden between men, they are forbidden between men and women, within as well as without wedlock. As usual, the various state laws are in wild disarray. Ohio deplores fellatio but tolerates cunnilingus. In another state, sodomy is punished with a maximum twenty-year sentence, while fellatio calls for only three years, a curious discrimination. Deviate sexual acts between consenting adults are punished in most states, with sentences running from three years to life imprisonment. Of the other countries of the West, only the Federal German Republic intrudes itself upon consenting adults.

  Elsewhere in the field of moral legislation, twenty-seven states forbid sexual relations and/or marriage between the white race and its “inferiors”: blacks, American Indians, Orientals. And of course our narcotics laws are the scandal of the world. With the passage in 1914 of the Harrison Act, addiction to narcotics was found to be not the result of illness or bad luck but of sin, and sin must of course be punished by the state. For half a century the Federal government has had a splendid time playing cops and robbers. And since you cannot have cops without robbers, they have created the robbers by maintaining that the sinful taking of drugs must be wiped out by law. As a result, the government’s severity boosts the price of drugs, makes the game more desperate for addicts as well as pushers, and encourages crime which in turn increases the payroll of the Narcotics Bureau. This lunatic state of affairs could exist only in a society still obsessed by the idea that the punishing of sin is the responsibility of the state. Yet in those countries where dope addiction is regarded as a matter for the doctor and not the police, there can be no criminal traffic in drugs. In all of England there are 550 drug addicts. In New York City alone there are 23,000 addicts.*2