Writers Read: D.W. Buffa

D.W. Buffa's recent novel is The Privilege, the ninth legal thriller involving the defense attorney Joseph Antonelli. The tenth, Lunatic Carnival,

is due out soon. He has also published a series that attempts to trace the movement of western thought from ancient Athens, in Helen; the end of the Roman Empire, in Julian's Laughter; the Renaissance, in The Autobiography of Niccolo Machiavelli; and, most recently, America in the twentieth century, in Neumann's Last Concert.

Here is Buffa's take on The Collected Works of Thomas Babington Macaulay:

One summer, years ago, wandering into a musty old book store in Manhattan, I discovered two sets of the collected works of Francis Bacon, one bound in an unpretentious plain cloth, the other, five times more expensive, bound in gorgeous green and gold leather. When I asked the bookstore owner why the one was so much more expensive than the other, he gave me one of those looks jaded New Yorkers reserve for out of town idiots and told me there was only one reason why people would buy the leather bound collected works of Francis Bacon or of anyone else: “They don’t buy them to read them; they buy them for the furniture value.”

This seemed worse than murder. Something had to be done; someone had to rescue all these priceless works of the human mind from becoming part of an interior decorator’s overpriced color scheme. When a few years later I discovered in a Chicago bookstore the Whitehall edition of the collected works of Thomas Babington Macaulay, of which only a thousand copies had been printed, twenty volumes bound in gleaming maroon leather, I knew my duty. It was one of the best decisions I ever made.

Ten volumes contain Macaulay’s masterful History of England, the other ten the essays that made him famous as a literary figure in the early 19th century as well as his speeches. His speech in Parliament on the Reform Bill of 1832, the bill that broadened the franchise to include the middle class and changed British politics forever, is one of the greatest speeches ever given. Reading it, even now, nearly two hundred years later, not only holds your attention, but as the speech draws to its conclusion, makes you think you are there, listening with the other members of Parliament, ready to jump to your feet cheering. Delivered at tremendous speed, it lasted well over an hour, every word spoken from memory. And while it is true that everyone had better memories then, when minds were not, like ours, cluttered with a million different disconnected electronic images and sounds, Macaulay’s memory was truly extraordinary. He had, among other things, memorized the whole of the Old Testament - in Hebrew!

One of Macaulay’s essays, essays that typically run thirty or forty pages, is an essay on Francis Bacon, whose collected works he purchased not to help furnish his living room, but to study, over and over again. Macaulay has nothing but praise for Bacon who had, to all intents and purposes, changed philosophy into science, modern science. At least since the time of Socrates, philosophy had been understood as the attempt to understand man’s place in the world, his place in the order of things. Bacon initiated what might be called the modern project: philosophy, the search for wisdom, replaced by the search for those things that will “alleviate man’s estate,” i.e. reduce, or even remove, the causes of human suffering. Instead of following nature’s law, nature would be mastered; science would discover the ways to provide the material abundance that would make prosperity available to everyone. Science, modern science, would make it possible for human beings to live longer, and might even, one day, banish death altogether.

Macaulay never doubted that Bacon’s project was a vast improvement over what Plato and Aristotle had tried to teach. The ancients assumed an inherent inequality between those who ruled and those who were forced, or persuaded, to obey. Histories were written only about the former, the men who controlled events, decided between war and peace, decided who would live and who would die; the men who decided who was, and who was not, subject to the law they made. Macaulay’s History of England is the first to give an account, not only of war and rebellion, the birth and death of kings and usurpers, but the life of ordinary people, how they lived, the conditions with which they had to deal, the sometimes dismal facts of their everyday existence.

The world, and especially the English speaking world, was not just moving toward greater equality, the emerging middle class, a class made possible by the commerce that was itself the result of the practical application of Bacon’s new science, was forcing a re-examination of every public policy and every public institution. This included the law itself, not just the law in England, where men like Jeremy Bentham were advocating a more equal approach to the criminal law, but in India, where Great Britain was the ruling colonial power.

It is unfortunate, particularly for those who have a serious interest in criminal law, that Macaulay’s Report on the Indian Penal Code which can be found in the seventh volume of the Essays, is not more readily available, or more widely read. Unfortunate, not because of some antiquarian interest, but because Macaulay’s remarkable work provides a standard by which to judge our own system of criminal justice. There is little reason to question how things are done unless you first learn that they have been done differently somewhere else. There is no reason, for example, to think anything wrong with allowing the prosecution and the defense to excuse the same number of jurors in a criminal trial if you have not learned that when the jury system was first introduced in England the prosecution was not allowed to challenge any jurors, while the defense could excuse up to thirty five; no reason to wonder why an American judge never tells a jury what to think about the evidence introduced at a trial, until you discover that in Great Britain the judge routinely summarizes the evidence at the end of the trial.

Macaulay, one of four commissioners given the responsibility of reforming the penal code in India, attempted to explain in their report, submitted on October 14, 1837, what the criminal law should be. He knew the task was among the most difficult, “in which the human mind can be employed; that persons placed in circumstances far more favorable than ours have attempted it with very doubtful success; that the best codes extant, if malignantly criticized, will be found to furnish matter for censure on every page….”

The first, and the most important, subject taken up is punishment. The ultimate punishment, of course, is death, which, though it should be the punishment for murder, should not be the punishment for robberies, mutilation, or rape. If death is the penalty for any of these crimes, the offender has an irresistible motive to kill:

“A law which imprisons for rape and robbery, and hangs for murder, holds out to ravishers and robbers a strong incentive to spare the lives of those whom they have injured.”

This elegantly phrased thought seems never to have occurred to those American politicians who think to treat any third felony as the ‘third strike’ that sends an offender to prison for life, the same sentence they would get for murdering any witness to their crime. And, in all fairness, neither would it occur to any of our more liberal minded reformers to add, as Macaulay does, the remark that, “If murder were punished with something more than death; if the murderer were broken on the wheel or burnt alive, there would not be the same objection to punishing with death those crimes which in atrocity approach nearest to murder. But such a system would be open to other objections so obvious that it is unnecessary to point them out.”

Among Macaulay’s more telling, and more useful, observations are those on the different effects various punishments have on the rich and the poor. Equal punishment, it turns out, is not necessarily very equal at all.

“Death, imprisonment, transportation, banishment, solitude, compelled labor, are not, indeed, equally disagreeable to all men. But they are so disagreeable to all men that the legislature, assigning these punishments to offences, may safely neglect the differences produced by temper and situation. With fine, the case is different. In imposing a fine, it is always necessary to have as much regard to the pecuniary circumstances of the offender as the character and magnitude of the offense.”

Macaulay decided not to include in the new code the “degrading public exhibition of an offender in a pillory, after the English fashion.” This may seem only what any right thinking person would do, but Macaulay’s mind is too penetrating, and too analytical, to rest content with an instinctive reaction against what seems cruel and unusual. The problem with the pillory is that it is the “most unequal” of all punishments.

“It may be more severe than any punishment in the code. It may be no punishment at all. If inflicted on a man who has a quick sensibility, it is generally more terrible than death itself. If inflicted on a hardened and impudent delinquent,” someone “who has no character to lose, it is a punishment less serious than an hour on the treadmill.” Of all punishments, “the most absurd is that which produces pain proportionate to the degree which the offender retains the sentiments of an honest man.”

In the introduction to the report, Macaulay remarks that laws should be “as far as possible, precise,” but also, “easily understood.” The way to do this is to furnish illustrations, “which will clarify what is meant.” When he takes up the difficult question to what extent an omission, a failure to act, produces, or is intended to produce, or is known to be likely to produce, the same evil effect as an intentional act, should be punishable, the use of illustrations becomes indispensable. For example, A refuses to give food to Z, who dies as a result. Is A guilty of a crime and should be punished? If A is a jailer, and Z his prisoner, then yes. But if A is a rich man, and Z a starving beggar, then no. The requirements of the law, and the dictates of morality are not always the same. “Many things which are not punishable are morally worse than many things which are punishable.” The wealthy man “who refuses a mouthful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice, yet we punish the latter for theft, and we do not punish the former for hard-heartedness.”

Another example. A fails to tell Z that a river is unsafe to cross, and by this omission causes his death, is it murder? If A has been stationed there to warn people of the danger, or if A has been hired by Z as a guide, then the failure to do so is a crime. But if A, who knows of the danger, has no duty to warn and would simply prefer to watch people drown, he is a completely worthless human being, but he is not a criminal.

One of the more interesting differences between what Macaulay thought essential for the criminal law and the position of our own criminal law is the punishment for perjury. We treat it as a separate, and somewhat minor, offense; Macaulay insisted that giving false evidence is “always a grave offense.” He draws a distinction between the kind of false evidence that “produces great evils and the kind that produces comparatively slight evils.” In the latter case, the punishment should be imprisonment for “not more than seven, nor less than one year.” But, and this is where Macaulay takes lying under oath much more seriously than we do now, where false evidence is given or fabricated with the intent to cause someone to be convicted of a grave offense not capital, the punishment should be the same as that “which he has attempted to fix on another.” Where someone gives false evidence with the intention of causing death, and that attempt fails, he is to be punished with the most severe sentence given for attempted murder. If that false evidence is successful, however, and the defendant is executed, perjury will be met with death. Macaulay notes that, “On this last point, the law, as we have framed it, agreed with the old law of England, which, though in our opinion just and reasonable, has become obsolete.”

A hundred years after Macaulay attempted to give a proper punishment for lying in a court of law, Joseph Conrad wrote in Heart of Darkness: “There is something deathlike in a lie.” That line captures, as no other line ever could, what Macaulay, and others like him, had always seen as the worst of our sins. That we, for some reason, now think lying, even lying under oath, a relatively pardonable offense, says something deeply disturbing about us.

Having read the twenty volumes of the collected works of Thomas Babington Macaulay, read them with increasing pleasure each time I go back to them, my only regret about buying them is that there were not twenty more.