The Charlotte News

Tuesday, December 17, 1940



Site Ed. Note: "A Remedy" indicates Cash's hearty approval of the use by Governor Burnet Rhett Maybank of South Carolina of the state militia to quell lynch-mobs, which should answer how Cash would have responded later to the mobilization of the military by the Kennedy Administration to enforce court-ordered integration of the University of Alabama and the University of Mississippi. Although leery of "force bills", Cash also understood that a recalcitrant mentality bent ultimately on violence must be dealt with swiftly and by all legal means available to the executive branch under the state and federal constitutions for law ultimately to have any meaning at all, especially when confronted with local law enforcement either too weak-kneed in obeisance to the mob (a little Gary Cooper at High Noon goes along way) or overly sympathetic to their ends, (the latter usually brought about by their own membership in the organization doing the lawbreaking or by receipt of monetary or political inducement from same). Maybank had been elected in 1938 as the first governor from Charleston since the Civil War and would serve with distinction as a solid New Deal, anti-Klan governor until November, 1941 when he resigned to become the replacement U.S. Senator after James Byrnes was appointed to the U.S. Supreme Court by Roosevelt. Maybank served in the Senate until his death in 1954--and was replaced in that seat by his ideological opposite, Dixiecrat Strom Thurmond, then Governor of South Carolina. How swiftly things change. (Hint: Demos, not Dixie. A Dixie, last we heard, was a ten-buck Confederate monetary exchange unit which, not unlike its time of issuance even, is, and has been for nigh on 139 years, pretty thoroughly worthless as currency.)

"A Phoney", (spelling per the original), provides us with a typically cogent Cash analysis of the reasons for the removal of Laval and the substitution of Flandin as Vice-Premier of the Vichy Government in France, the ruling puppet under Hitler's regime. Apparently, by the shoulders of Atlas and a good read on the news of the day, all to do with the desire to pass troops through France to the Mediterranean instead of through Italy, at the time with its hands full with the British and Greeks, and with the morale of the peasant fighting man in the Italian army at low ebb as a result. A perusal of editorials and editorial cartoons in newspapers throughout the United States during this period will provide confirmation of this point. It was thought at the time that Mussolini was on the ropes, something which would yet not occur for two and a half more years when the Fascist grand council refused further support for his policies and the king then removed him from power and jailed him. Hitler's Storm Troopers freed il Duce to an exiled puppet government in northern Italy until he was captured at war's end, tried in summary court martial and shot, then paraded, in memento mori, through the streets of Milan by his former subjects, sometimes upside down. Such is the way most usually of Fascist despots. It appears to stem from a boyhood failure to realize that thuggery to achieve ultimate power is contrary to the human nature of those thus governed. Yet, but little deterrent effect it seems to have, as such despots still exist on the planet in various places, some local, some with greater power.

As to "Good Start", the idea of better lighting is obviously a good one to deter crime. But the other idea promulgated, that of wholesale arrests and searches, while sounding good a' first, in the end only winds up making a mess of things, leading to more coy attempts at concealment of weapons or other contraband. And it is after all a violation of the Fourth Amendment, or certainly, in this example, sounds like it. The law of search and seizure, when boiled down, is rather simple. If a law enforcement officer has reasonable or probable cause, defined as articulable reasonable basis, when viewed objectively, to suspect particular criminal conduct and that the particular suspect is so engaged, the officer may conduct a limited search of the person of the suspect for weapons for the safety of the officer. The officer may also search any belongings of the suspect within arm's reach which might contain weapons. The officer also always has authority to seize any illegal weapon or other illegal item in plain view and arrest the suspect in whose apparent possession the item is. (Just what constitutes a weapon, however, will depend on the circumstances at the time and how the object is being used. A normally legal kitchen knife, for instance, carried with apparent purpose only for use as a kitchen implement does not convert the knife into a weapon, but carrying it, with apparent intent to use it as a weapon, does. That assessment may turn on how the instrument is carried, whether it has been altered to enable it to perform better as a stabbing instrument, whether under the circumstances apparent it has some civil use as a kitchen implement, what is said by the person carrying it, what he does with it, etc.) And, of course, when we consent to the search, officers are free to conduct the search as necessary per the consent.

In the example presented below, where officers were sent into places where criminal activity was merely suspected to flourish, the officers would have needed probable cause to search individual suspects. If a person was drunk in public in such a way that they might pose a danger to themselves or others, and thus be violative of the appropriately Constitutionally circumscribed law forbidding public drunkenness, then the officers might well have had the probable cause to conduct an arrest of that person and then conduct the limited pat-search necessary for their protection in conducting the arrest. Anything in the way of an illegal weapon found during the pat-search could be seized and used as further evidence of additional criminal conduct whether by the carrying of a concealed weapon or by reasonably suspected use of the weapon in a prior crime known at the time with particularity by the arresting officer. And if that was the way of it, then such arrests and searches pursuant to them were legal. If, however, officers merely lined up everyone in the place, "French Connection" style, and routinely searched without discriminating between those in their cups and those merely out socializing with the boys, any search in such fashion would not be legal.

A good starting point on the law of search and seizure in modern times is provided in the case of Katz v. United States, 389 US 347 (1967), and the cases cited therein, holding in that case that it was illegal for government agents to eavesdrop on conversations of an individual suspected of transmitting wagering information via telephone, by tapping a specific public telephone booth, though the government asserted the taps were limited only to when the particular individual used the booth. The Court held that the warrantless search via eavesdropping was not properly circumscribed by a prior judicially approved search warrant. And subsequently, the Court has held in Malley v. Briggs , 475 US 345 (1986), that before any legal warrant may issue, an officer must have an objectively justifiable basis for it and must exercise "reasonable professional judgment" in seeking it, not to mention that the officer obviously may not make false or misleading statements or omit material facts in the application for such a warrant, be it for search or for an arrest; otherwise, the officer is subject to a civil action for damages by the citizen whose rights are thus violated.

We live, in short, under a system of laws, passed by Congress and the various state legislatures and localities, all set up under the Supremacy Clause of the United States Constitution, as applicable to all states and all localities within those states, under which each law must of itself pass muster. While some state constitutions may afford even greater protection of our rights than the federal constitution, at minimum, the final arbiter of any governmental enactment of law or that of any government functionary acting under that law is whether an individual functionary's conduct passes muster under the United States Constitution, first assuming that the law itself under which the functionary is acting has passed that test.

It is a minimum standard, not a technicality to be eschewed on the convenient notion that "that's the way we do things around hyere, boy" or that "it has always been done that way and so will continue to be" or that "we do things the way we do things hereabouts" or that "I seen it done that way on tv and at the movies when I was a young 'un, and well, I kinda like it that way". Those sorts of rationales get people killed ultimately, including law enforcement officers, though the public in its most mob-mental phase might show joyous expression at the John Wayneish figure taking the law into his own hands. (Mr. Marion Michael Morrison, a.k.a, Duke Morrison, of Iowa, only made war and cowboy films as an actor; reading lines of scripts, written by writers, and accepting direction from directors and producers, in carefully set up, rehearsed and subsequently edited frames, with syrupy music aplenty playing over it all, all with the prime motivation of making a huge buck off the P. T. Barnum concept that one is born a minute, the easily understood common notion of the maverick knowing right from wrong, Pilgrim, by golly--despite what all them lawyers, judges, politicians and others might say to the contrary notwithstanding. (It was them latter, Pilgrim, and those who fought the Revolution back yonder for those freedoms protected by that Constitution, what made the country what it is at its fundamental core today, like it or not, ol' Buckeroo, you--not Mr. Morrison and his partners in Barnum-Baileywood, actors all.)

Sometimes, more often than not, in fact, the lines in reality get extremely blurred eventually when we think we know everything by some deign of inherent goodness within us--without bothering to take the studies on the particulars of each given episode as it arises in actual human conduct, analyzing it to determine whether or not at base such conduct is consistent with innocent conduct, even though on the surface it might appear peculiar or strange, unfamiliar or disturbing to us personally, heyerabouts. You might wind up picking on someone who is a future jurist or statesman, while letting an accomplished actor have his or her way with things until we all wind up in considerable unreality, like as not akin to Barnum-Baileywood, rather than the United States of America--that for which real people laid down real lives in bloody ditches in this and other lands ultimately to preserve and protect. In fact, we suspect that if Mr. Morrison were still among us, he might agree--and regardless of whether they named the Orange County Airport for him. He wasn't, after all, contrary to popular belief, the quintessentially True American, just an actor...

So, we dissent in part and concur in part with "Good Start". For a better, more salutary approach, in our opinion at least, to the whole thing, from a civic standpoint of local government anyway, see the suggestions in "Cure for Crime", January 30, 1941.

And next time someone tells you, "First, we kill all the lawyers--I think Shakespeare said that; anyway, I heard that and I kinda like it", tell them what it really means, Pilgrim... (See Henry VI, Part II, Act IV, Scene II in Blackheath, as spoken by Dick the Butcher.)

By the way, not referring to newspaper journalists or others merely expressing an opinion under the First Amendment, but have you heard the one about a thousand Jack and Jill Cades at the bottom of the ocean...?

Good Start

Two Moves Should Aid in Curbing Murder in City

Two encouraging things are at length being done about murder in Charlotte.

Mayor Douglas announces that 41 new street lights will be installed in Negro districts. It is high time. Brooklyn is the most murderous part of the city, the part which is mainly responsible for Charlotte's evil eminence as the wickedest town in the nation. Brooklyn is also the worst lighted of the city's congested areas. And it has often been demonstrated that there is a direct correlation between the absence of light and the murder rate.

The other encouraging thing is being done by Police Chief Joyner. Saturday night his men dropped in on all the piccolo houses, etc., in the Negro quarter, arrested the drunks and searched everybody for concealed weapons.

Most of the murders in the city are prepared, at least, in these dives with the nickel-in-the-slot phonographs. Nearly always the murderers are drunk. And always the deed is made possible by the fact that the murderer is carrying a concealed weapon.

The latter habit is very widespread among Negroes, male and female. If they don't carry a pistol, then they carry a knife with a blade longer than the law allows. Or failing that, an ice pick or some other lethal instrument.

Breaking up this practice will go a long way toward solving Charlotte's murder problem. And the way to break it up is systematically to round up those who carry such weapons and inflict the full penalty of the law upon them.


A Rule

Struggles for Advantage Could Prove Our Undoing

If in the next few years historians should have the grim task of setting down the failures that had led to the collapse of England and the economic siege raised against the United States by an overbearing combination of European and Asiatic powers, let us all pray that nothing should have occurred in this republic which would compel them to say:

In the United States rearmament and preparedness suffered from a suicidal obstinacy on the part of labor and capital to laying aside their differences in the face of a common danger. Instead of accepting the status quo for the emergency, labor continued to press for new reforms, and capital continued to resist those reforms which had already been written into law.

The sense of the paragraph above, positively stated, might well become the rule according to which all labor-capital disputes should be adjudicated in this critical period. It would be onerous to both sides--to labor because the strategic time to gain new advantages is when business is booming, and to capital because to abandon resistance to detested innovations would have the effect of assenting to them.

Nevertheless, a rule there must be if defense is to go forward without obstruction, and the only sensible rule seems to be that reforms shall be frozen as they are until the menace from abroad be turned back.


The Remedy

Governor Maybank Knows How To Halt Lynching

Governor Maybank seems to be determined against lynching in South Carolina and to know how to make good that determination.

The sheriff at Georgetown wasn't determined. When the mob came to his house and routed him out of bed, he tamely submitted and handed over the keys to the jail. As a matter of fact, there was no prisoner there who was being held in connection with the crime of rape. But eleven were hauled forth, manhandled, and escaped death only because of the indecision of the victim of the assault and because of constant pleading by decent citizens.

Meantime, however, Governor Maybank had ordered out the militia. And before the mob could make up its mind to murder a victim--any victim--the soldiers had appeared and it was plain that anybody who tried to go through with murder now stood to be shot. No mob murderer ever monkeys with a gun when he believes that the man who has it will shoot. So the mob broke up.

The use of the militia and the will to order it to shoot when anybody dares challenge it is the tried and tested remedy for lynching. Cameron Morrison virtually stamped the thing out in North Carolina with a machine gun proved to a doubtful mob that he meant business when he said that the law would be enforced while he was Governor. Let us hope that such proof won't be necessary in South Carolina. But if it is, Maybank looks like the man to furnish it.



Maybank-Sawyer Battle May See A New Champ Crowned

A hot and heavy battle is shaping up in South Carolina. Governor Maybank has issued the challenge, and experience guarantees that it will be instantly accepted by the Highway Commission. The astute Ben Sawyer likes to fight and has won so many of them that he is beginning to take stock in the legend of his invincibility.

This time, however, the odds would appear to be even. Governor Maybank is a worthier foeman than was Governor Johnston, whose impetuousness alienated public support. And Governor Maybank is a Low Country man. His background and associations ought to give him influence with the delegations from the very counties which have stood by the Highway Commission and against diversion.

Diversion (of highway funds to general government purposes) is always calculated to stir up a red hot argument anywhere. In this upper Carolina it brings on a bitter controversy whenever the Legislature meets.

But in North Carolina diversion is advocated or resisted largely as a matter of principle, whereas in South Carolina it comes close to being a matter of the survival of essential public services and the credit of the State Government.


A Phoney

German Uproar Over Laval Probably Hides a Purpose

The Nazis are raising a great hullabaloo about the removal of Pierre Laval as Vice-Premiere of the Vichy Government and his replacement by Pierre Entienne Flandin. But it may be suspected that they have ulterior motives.

Flandin is the traitor who was Premiere of France when the Nazis reoccupied the Rhineland. At that time there was no doubt at all about the power of the French army to cut through to Berlin in a week. In fact the Nazi army had sealed orders to retire if the French acted.

But Flandin did exactly nothing. He had great holdings in the German arms cartel which he wanted to protect. And moreover, he admired the Nazis more than any other Frenchman.

Normally, therefore, the Nazis could be expected to regard the replacement of Laval by Flandin with a good deal of pleasure. Laval's real admiration is Fascist Italy, and his ideal is the creation of a Fascist block of states, with France at their center, to balance out the power of Nazi Germany. Flandin is wholeheartedly pro-Nazi.

But the Nazis right now want the right of passage through France to Africa, to aid Italy. They want to go by way of France for several reasons. One is that passage of German troops through Italy would not be healthy for Italian morale. Another is that it would be far safer for the Nazi army to cross the Mediterranean from France rather than from Italy.

But Marshal Peain has refused to allow it. And the Nazis are afraid of sabotage if they attempt to do it without formal French consent. The uproar about the changes in the government probably represents an attempt to force that consent.

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