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GORE VIDAL
it unlikely that the forces which created the Volstead Act could ever
again achieve a majority. But today odd things are happening in the
Republic, 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 catch–
all turned out to be a marvelous 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
us.
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. 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, "What–
ever 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, it is now possible to ban a book like
Lady Chatter–
ley's Lover
on the imprecise grounds that it will corrupt public
morals, and a lecture by Mr. Norman O. Brown could end in arrest.
The possibilities for persecution in the name of public morals (them–
selves 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 con–
ceptions 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 govern–
ment." Good. But Lord Devlin does not acknowledge that there is al–
ways a considerable gap between what is officially recognized as good
