The Charlotte News

Friday, March 3, 1939


Site Ed. Note: The reference in "Dodd and Lord Jim" to Lord Jim's failure to effect the rescue of all onboard his ship, pilgrims bound for Mecca, brings to mind the recent trampling incident in January, 2006 by the pilgrims to Mecca in which 345 people were killed and 244 more were injured. This is not the first such stampede; 244 were similarly killed and another 244 injured on February 1, 2004. In 1998, 180 were trampled; in 1994, 270. It appears there is a point at which the rush to partake of spiritual purification overtakes any conceivably rational spiritual end and simply becomes tragic mob violence--such as the absurd protest over cartoons of late from Denmark. We recognize that within Islam it is considered blasphemy to display any image of Muhammad, joking or not. But that is to believers of Islam. And so be it to those who hold belief in Islam. There are those who profess to believe in Christianity who believe it blasphemy to say goddamned, that is, according to their belief, to take the name of the Lord in vain. (We have explored that before in connection with Cash's stint as editor of the Cleveland Press, and so we won't belabor it other than to say the key to the proscription is name and in vain--that is, unless you consider the words of the Bible to be ambiguous, and so subject to your own subjective interpretation. And thus, you figure a way, in your own interpretation, in order to adjudge others who say goddamned to be surely bound for hell hellions committing blasphemy and thus, as the true instrument of God, synonymous in fact therewith, which you are, no doubt worthy of the rope or worse as fit retributive wages of sin.)

All of which brings us to what we wish to say about the Denmark newspaper cartoon episode: Those professing to be religious who cannot take a joke about their religion need to rethink whether they truly profess a religion or simply a fascist philosophy of enforced tyranny in the name of religion. Anyone who calls for the execution of someone for exercising freedom of expression is not in any manner, by definition, devout to any religion, most certainly including Islam, a religion which professes as its primary attribute, the quest for peace. Only exception being in self-defense or defense of others, much as the Judeo-Christian ethic recognizes, even if the most literal view of the Biblical proscription on killing does not. But self-defense or defense of others only comes into play in any rational sense when there is a direct physical assault with deadly force imminent upon one's self or the other, and performed without legal justification in the first instance. While the cartoonists in question may have committed blasphemy by representing Muhammad, if so, they must do their obeisance for their obloquies, it would seem, to Muhammad, not to any corporeally extant human being. Perhaps, therefore, they should journey to Mecca, if they so choose, of their own free will, and there perform their pennance if any they need.

But to those without humor who profess in the name of religion, any religion, to want to execute someone for free expression, you are already on your way to Hell, in our opinion, so to Hell with you. And if you wish to lynch us for saying it, you prove our point.

By the way, did you hear the one about Mahomet, Jesus, Buddah and the traveling salesman from Nantucket, all on the way to Mecca by way of Jerusalem and Lhasa?

The grouping of the editorials today is interesting, if erratic, probably indicating that "One-Man Appellate Court" was not by Cash: in the one, the editorial praises the indictment of Federal Judge Manton for taking a bribe as well as the giver of the bribe, but bemoans the fact that the corporate personnel behind the bribe were nowhere to be found in the dock; in another, definitely by Cash for the Lord Jim reference, the man who ran over the little girl and fled is given empathy for acting uncharacteristically in strange and suddenly unfortuitous circumstances; in the third, the escape from justice of a peeping tom by deign of crowded court calendars is roundly castigated.

As to the latter, we have to feel that, weighing the scales of justice, the peeper, even though routine in this instance as he appeared to be in the halls of justice, and even the bribe-taking judge and his accomplices, are far less of a worry to society than a doctor who runs over a young black girl and leaves the scene of the accident.

Indeed, one might say that in each case one could conceivably say, "There but for fortune..." of circumstance, the first two by temptation not resisted, the third by lapse of attention and fear of the consequence.

Yet, it is the proximate consequence which produces the seriousness of the alleged offense, not the nature of the offense itself.

But we of decent society don't think that way usually, that is unless you happen to have been or still are a criminal defense attorney, perhaps.

Each act, after all, of these three in issue, in the end involved volition--only one of which resulted in death.

That one therefore has to be the one most worrisome, and indeed the one which carries the greatest penalty under law. Then the bribe. Then far down the line of seriousness, the peeper, a misdemeanant. Yet, the tone of the editorials seems almost to suggest the reverse.

Cash was not always so sympathetic to hit and runs. (See "The Guilty", November 26, 1940) Why this time, we can't say, other than that perhaps it was because the culprit was a doctor and eventually owned up to the crime. Nevertheless, a despicable crime, maybe even more so for the driver being supposedly a responsible and privileged citizen. And, perhaps, he only confessed after being caught by tell-tale evidence--like the businessman in the recalcitrantly conscientious '56 Ford, the one with the beeping horn and blinking lights and stubborn brakes at the fatal intersection, who ran over the little boy in the old "Twilight Zone" episode from yesteryear.

Yet, in all three matters, we agree ultimately with Cash's take in the last paragraph on Dr. Dodd. Few of us are perfect.

While on the subjects of crime and conscience and ambiguity, here is what Chief Justice Marshall said about ambiguity in United States v. Wiltberger, 5 Wheat. 76, 95-96 (1820): "Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words . . . in search of an intention which the words themselves did not suggest."

For a good example of how the courts of our land resolve questions of putative ambiguity, read U.S. v. Gonzales, 000 US 95-1605 (1997), a case seeking to resolve a Court of Appeals determination that a U.S. District Court had erred in sentencing, under a Federal sentencing law requiring a consecutive, i.e., distinct, sentence of five additional years for use of a firearm during the commission of a drug offense, the defendant in that case to a term for the underlying drug offense to run concurrently, i.e., overlapping, with a sentence for a state conviction for the same conduct, while sentencing on the use of the firearm to an additional five years to run consecutively with the state and Federal concurrent terms for the narcotics offenses. (Incidentally, should you wonder how someone is prosecuted for both state and Federal offenses out of the same conduct without doing violence to Constitutional Double Jeopardy proscriptions under the Fifth Amendment, it is that there are two separate sovereignties at work, state and Federal, and double jeopardy only applies with respect to each sovereignty separately and distinctly. (Or, that is, when Art James says it applies.) If, therefore, a crime is committed which imputes the application of Federal law, such as, in the drug context, when there is interstate trafficking or importation from a foreign country, beware the jurisdiction of both sovereignties, state and Federal, two bites at the apple. The state offense arises because of the soil on which it occurs; the Federal is imputed when there is some Federal jurisdiction also to be applied over the conduct. The same is true, too, for instance, in bank robbery of a Federally insured bank, one existing on state soil--two bites, potentially. Bye-bye--twice over, and over. Sir Winston's admonition, or no. For when you rob most any bank or import proscribed drugs or deal likewise with it in interstate commerce you run afoul of that admonition, you see, for having finished your sentence with a preposition, i.e., "I done finished that one, Dude, with time in. What for?")

The issue regarding ambiguity arose when the Court of Appeal looked to the legislative history of the Federal sentencing statute in issue requiring a consecutive term for the firearms violations and found that the history included a statement to the effect that the firearms sentence had to run before any other sentence commenced. Thus, the Court of Appeals determined that this led to the absurdity that the state term for the underlying drug offense, being served in this instance before the Federal offense, would first be completed in whole before the Federal firearms sentence would be served in a Federal facility. Then, therefore, the Federal drug offense would have to be served, separately, while normally it would be concurrent with the state offense under the sentence imposed in that case. Thus, the apparent anomaly, which the Court of Appeals resolved by ruling that the firearms offense could be served concurrently in this instance with the state sentence. The Supreme Court ruled 7 to 2 that the District Court had it right, with Justices Stevens and Breyer dissenting.

The heart of the question in this case, as we understand it, is whether the state court would have authority to run an imposed state sentence concurrent with that of an already imposed Federal sentence; then, if so, consecutively, the Federal sentence for the firearms violation might be imposed without the anomaly posed by the Court of Appeals. But what if the state prosecution occurred first? There is no Federal sentence extant with which to run concurrent the state sentence. Yet, the Federal judge might still run the Federal sentence on drug trafficking concurrent with the state sentence, and then, again without the anomaly, the firearms violation consecutive thereto.

But, then you start the whole damned thing over again?

We will let you read it for yourself. It is a perfect exercise, both the yin and yang, in observing and resolving ambiguous language and how the courts go about it--if and when it arises.

Candidly, we haven't yet figured out on which side we come down on this one. We shall refrain, however, from suggesting that the majority decision or the dissent is ambiguous. It is merely, no doubt, our understanding of either for the moment which is.

Whichever the side on which you agree here, the basic rule is clear enough: first there must be some ambiguous language or other conflict in issue, such as here between the apparent face of the statute and its legislative history, before the need will even arise for such an interpretation.

We do not say: "Golly, I read that two or three diff'rent ways, Maybel. Reckin it's ambidexterous--wait, that don't sound quite right. What was that word they was sayin'? Anyway, reckin' I can do as I please on this one. We can interpret it. I don't understand half the words in it nohow and we ain't got no dictionary around here. The supermarket done ran out of the free ones and they closed the liberry when they run out of funds."

When in doubt, check here. But read and read clearly--fast, then slow again, then fast again, then slow, think on it some, as to what makes sense plainly within the context to determine what was likely intended...until you get it.

And that applies with equal force to contracts, social or legal, as to statutes.

It is well worth your consideration, whether you be a legal genius or a layperson, or both concurrently. For we have seen members of each of those species take ample liberty with what is and what isn't ambiguous. And should we do that too much, we might as well have no rational rule or law, or rule of law either. We become merely minions to vascillating subjective rulers, applying rules willy-nilly, without predictability to conform our conduct to any standard but the most narrow of all--fear of the ruling order of the moment. (See, e.g., Bush v. Gore.) And that, Pilgrim, is nothing more nor less than ancient Rome incarnate.

Which is why the Founders, in their penultimate wisdom, provided us the institution of the Supreme Court, to resolve with reasonable temporal finality such disputes, both those of the reasonable and those of the unreasonable varieties--with due recognition for the fact that times do change over time, and social attitudes with them. But, as to deciding the outcome of Federal elections by overriding the decisions of the highest court of a particular state, and thus entering into the treacherous realm of political questions, from now on, we humbly counsel, there should be applied in the first instance one unambiguous word: Stay. (And we do not mean by that, issue one.)

We add also the following letter to the editor from this date's page:

They Really Have No British Accent in Kangaroo Land

Dear Sir:

I am enclosing herewith a photograph of Colonel John Dodge, London banker, and a Mr. Desmond Ahern of Melbourne, Australia, which appeared on the front page of your paper a few days ago. In the upper left corner you state "Tom Franklin, News photographer, snapped the shutter just as Mr. Ahern made an observation--can't you just hear that accent?" May I take issue with you regarding Mr. Ahern's accent, that is, provided he is a native Australian? I visited Australia several years ago I and must say that I do not find so much difference between their accent and our own. That is for the native born, not for those just from England. I met many of all classes and found most of them wishing that they belonged to the United States and not England. While they drive on the left side of the street like the Briton, I would say they are much more American than English. I found them a wonderful people. I did not see a native born person who had an accent to speak of, and they murder the King's English just about as bad as we Americans. They have many slang words that an Englishman never heard of, nor we Americans either. Another thing I must say for the Australians, I did not find any that had the superior attitude to Americans the English have. Had Mr. Ahern come from New Zealand I would not say a word, as it is another England.

Thanking you for taking your time to read this but I could not pass it by. It is my impression that no American can say too much for an Australian. I am sure you would feel as I if you should ever visit Australia.



Good 'ay, Mates.

Those Who Go Free

Maybe the Federal Grand Jury at New York hasn't got around to it yet, but there is a great glaring hole in the report turned out yesterday.

It is good news that Judge Manton is apparently going to be tried for taking bribes, though apparently on one of the lesser counts charged against him. Good news also is the fact that one George M. Spector was indicted along with him for having paid him bribes.

But the great glaring hole still remains. It is in connection with cases of two large corporations that these bribes are alleged to have been paid. But there were no indictments brought against any members of the these corporations. Nor were there any brought against the numerous other corporations whose names have figured in the scandal, though one of them is alleged to have paid bribes totaling $300,000!

Perhaps the reason for that is the statute of limitations, as it may also be the reason why Judge Manton and his alleged co-worker were indicted in only relatively minor cases. But if the grand jury can actually lay hands on the bribers, it certainly has the power thoroughly to investigate the case and make public the facts. And that plainly ought to be done. Bribing a judge is as much a crime--perhaps a worse one--than accepting a bribe. And nobody who is guilty of it ought to escape punishment in one form or another.

Dodd And Lord Jim

Dr. Dodd came off lighter than did Conrad's Lord Jim, who spent the rest of his days expiating a momentary lapse in his code.

The cases were curiously alike at bottom. Jim, as readers of the book will recall, was an English gentleman turned merchant sailor. The code of honor held by all his people before him, and the code of honor of his greatly loved calling--both of these alike demanded that ship's officers stand by his damaged vessel and attempt to save her, and the lives of the helpless Mohammedans, pilgrims to Mecca, crowded on the decks like cattle. But in the emergency something happened to Jim--a daze in which the panic of his fleeing fellow sailors wrestled in the depths of his consciousness with his code, until at last the call of one of those who fled caused him to leap, almost without volition, into the boat, too.

So with Dr. Dodd. An honorable man, a man whose whole career had been dedicated to the service of humane ideals, he suddenly encountered a situation wholly outside his experience--when he struck the little Negro girl with his automobile. And in a dazed rush of sudden fears, as he himself has confessed, he fled.

It proves little, perhaps, save that none of us really knows what he will do in any given situation until he has actually encountered it. And that too much moral indignation against other men ill becomes any of us. "There but for the grace of God go I," is often no tribute to superior gifts of virtue in ourselves but merely to more fortunate chance--or more stolid nerves.

This Wild Ride

Nearly everybody agrees with what Senator Pat Harrison had to say yesterday about the awful consequences of uninterrupted Federal deficits. "Economic confusion and chaos" are certainly ahead of this country if the Administration doesn't come down to earth, as a thousand economists, more or less, have gloomily predicted.

But what, pray, is to be done about it? The Administration isn't going to start the painful process. The President has been before Congress and dared--actually dared, with an impish grin on his face--that body to take away the gravy from this or that class of Federal beneficiaries. Congress isn't going to do anything about it, as the test cases so far this session clearly show. And it is two years before there can be a change in Administrations, and even then there is considerable doubt that the will or the ability to cut down on spending will be present in sufficient quantity to break off a vicious habit of ten years' duration.

No, the only way to put a halt to the spending is to stop making appropriations, and that's a course that neither this Congress and this Administration nor the next Congress and the next Administration will have the nerve to take. So it's hold on, everybody! We don't know where we're going, but we're on our way!

Pius XII

Eugenio Pacelli was an almost inevitable choice as successor Pope to the late Achille Ratti. Almost immediately after his elevation to the rank of Cardinal-Priest in 1929, he was appointed Papal Secretary of State and Camerlingo (i.e., treasurer) of the Church. In that role he has had probably the widest experience of any living churchman with the management of delicate foreign affairs. He is commonly credited with having had a great deal to do with the shaping of the foreign policy of Pius XI, especially in regard to Spain.

And the new Pope had inevitably to be a man who was conversant with foreign affairs and skilled in diplomacy. For the Church today is in probably the most dangerous position it has been in since the French Revolution. Franco who had its official blessing, has won in Spain, but obviously at the cost of alienating many millions of former Catholics.

On the other hand, it is plainly menaced, in its independence, its property, and its doctrines, by this very Fascism. Franco himself already begins to make it clear that he means to be master in the religious field as in others. The schism with Mussolini, never quite healed, is opening again over the racial and education questions. And in Germany, the systematic expropriation of the Church is rapidly gaining momentum. Hitler makes no bones about his intention of (1) making all Church property state property, and (2) depriving the clergy of the liberty of expression. Such a program seems almost certain to end in open warfare between the Church and the Nazis. Yet if the break comes, it is highly likely to mean a break with Mussolini at the same time--a thing that might force another Flight to Avignon.

Such are the problems the new Pope must face--the problems which made the selection of Pacelli, with his background and training, the almost inevitable choice.

One-Man Appellate Court*

There was much angry excitement in County Recorder's Court yesterday over the trial of a peeping tom. Solicitor McCauley insisted on a jail sentence, that the man might be put away from doing worse harm. Judge Howard, denying a plea for suspended sentence, said--in what we trust was a lapse of judicious temperament--that as a husband he knew what he would do if he caught a peeper--he'd blow his brains out.

So they gave him two years in jail and five two-year sentences suspended on good behavior, and the man appealed to Superior Court.

It wasn't the first time. On January 4, 1938, he was tried in County Recorder's Court on two charges of assaulting a female. Adverse testimony was that he had picked up three girls in his car, two of them 16 and the other younger, and had made improper advances to them. The phase of the case involving the youngest girl was heard in Juvenile Court, where the man was acquitted, but on the other two charges he was convicted in Recorder's Court and fined $25 in each. He appealed to Superior Court, and less than a week later the convictions standing against him were whitewashed. That is, Solicitor Carpenter, effectively setting aside the verdict of the lower court, took a nollepros.

It happens time and again that the police will arrest a man and the lower courts will convict him only to have him scot free by the simple expedient of persuading the Solicitor to call off the dogs. In this instance, the deterring effect of punishment was wholly lost on the man later convicted as a peeping tom; hence it may be said in all fairness that his further offenses are traceable at least in part to the lenience he received from Solicitor Carpenter, and perhaps it is that official as much as the culprit at whom the anger manifest in County Recorder's Court yesterday ought to have been directed.


Framed Edition
[Return to Links-Page by Subject] [Return to Links-Page by Date] [Return to News--Framed Edition]
Links-Date -- Links-Subj.