pole screen while sitting in front of an open fire. The pole screen,
sometimes made of painted wood and sometimes of fabric, stood on a
tripod base and was placed in front of a person to shield his face from
the fire. The top part was adjustable and could be raised or lowered as
the person wished while toasting his legs.
Dealers in later years got the idea of converting the pole screens to
other uses. They cut the screen from the pole and used the tripod as a
base so that the old pole screen became a coffee table. While all the
parts actually were antiques in themselves, Customs held that it did
not qualify for free entry because the character of the article had
been changed over the years. It was not being imported in the same form
in which it originated and for which it was primarily intended. The
fact that the parts were antique did not qualify it for free entry any
more than the table fashioned from an Oriental panel.
Even the best and most reputable of dealers sometimes make mistakes
in judging the age of art objects. There was one case in which such a
misjudgment cost the dealer $6,300 in duties. A New York art gallery
in 1953 paid $4,300 for porcelain vases which it believed to be early
eighteenth-century Chinese. They were purchased from importers, who
had bought them from a corporation which was disposing of several art
objects for an estate. The vases originally had been owned by the royal
family of Russia and had been brought to this country after the Russian
revolution.
The gallery sold the vases for $9,000 to a woman who maintained her
residence in Paris. One evening she boasted to her dinner guests that
the vases were early eighteenth-century discoveries which once had
reposed in the palace of the late Czar of Russia. One of her guests,
an antiquarian, suggested discreetly to her later that possibly her
purchases were not eighteenth-century Chinese but were from the
nineteenth century.
The woman indignantly demanded an explanation from the gallery,
which replied that they would gladly refund her money if she were
dissatisfied, but they could not admit that a mistake had been made
in dating the vases. The woman shipped the vases back to the United
States labelled as antiques, free of duty, and valued at $9,000.
When the vases arrived at Customs in New York, one of the Bureau’s
experts studied them and declared that the vases were not Chinese
eighteenth-century vases, but in fact had been made in France in the
nineteenth century.
The Customs examiner’s judgment was upheld by other authorities in
this field. The gallery was required to pay duty of $6,300. The tariff
law states “if any article ... is detected as unauthentic in ... the
antiquity claimed as a basis for free entry, there shall be imposed,
collected, and paid ... a duty of 25 per cent of the value ... in
addition to any other duty.” And in this case the “other duty” amounted
to 45 per cent of the value.
Cultural growth can hardly be reduced to statistics, but Customs’
statistics are at least persuasive in support of the argument that
the United States is now enjoying a cultural boom. Ten years ago
American collectors were purchasing original paintings at the rate of
$8.5 million a year. The purchases have increased to $33 million a
year, with indications that the country is on a prolonged art-buying
binge. It has been a profitable investment for many, as the values of
the modernists’ paintings--particularly popular in this country--have
spiralled.
The increase of interest in art has created a problem for Customs
because--with the huge sums of money involved--there have emerged
in Europe several “factories” producing bogus paintings in Paris,
Amsterdam and Rome.
The appearance of the forgeries moved the Customs Bureau to issue this
warning in its monthly bulletin:
Dealers and experts must approach all shipments with extreme
caution and employ modern scientific testing methods because of the
skill that has developed in the forging of scenes and signatures.
A recent purchase of a Modigliani, described merely as a “Portrait
of a Woman,” as so many of his works are, demanded much time and
research. A well-known American collector obtained the picture for
$25,000--a bargain, considering the quality of the painting. Our
appraisers and examiners set to work. They delved into the very
elaborate history of the painting and discovered that the canvas
actually was 2 inches smaller than the original--also there were
color differences. To the dismay of the importer, this import was
appraised at $150 and returned for duty as a copy.
Many of the fakes are discovered through the use of X-ray and infrared
and ultraviolet lights, which reveal overpainting, restorations, and
flaws not visible to the naked eye. Chemical analysis of the paints and
varnishes used by the artists often give a clue to the period in which
the work was done.
Over the years, the Customs examiners have learned that any decision
they make on a work of art is potentially explosive. They have learned,
too, that on some days they can expect to appear very dumb--and on
other days very smart. And that very few people seem to hear of the
smart days.
19
SEX AND THE CENSOR
Censors are unloved creatures. They are damned by writers, artists,
and liberal thinkers wherever men cherish free expression. They are
regarded generally as crude conformists who wear their righteousness as
proudly as a Boy Scout wears his merit badge.
Every rule is likely to have its exception. The exceptional censor
in the United States is a tall, good-natured, erudite lawyer named
Huntington Cairns, who might justifiably be called the nation’s
watchdog against the importation of obscene books, pictures, and other
items of a questionable moral character. It would be too much to call
Cairns “the beloved censor.” But if a department of the government were
capable of affection, then the Treasury Department (and the Customs
Bureau) at least should feel this warm emotion for the man who has kept
them remarkably free from foot-in-mouth embarrassment for more than a
quarter of a century.
Since 1934, Cairns has advised the Treasury and the Customs Bureau in
their decisions as to what constitutes obscenity in foreign imports.
Since his arrival on the scene there has been no significant public
controversy over his decisions, even though the dividing line between
genuine art and pornography is often no more than one man’s prejudice.
Officially, Cairns is secretary, treasurer, and general counsel of the
National Gallery of Art. His headquarters is a large, secluded and
attractive office in a wing of the National Gallery on Constitution
Avenue in Washington, D. C. It is from these improbable surroundings
that Cairns advises Treasury and Customs on what is obscene and what
isn’t, what should be refused entry into this country as plain trash,
and what should be permitted to enter. The Treasury is under no
obligation to follow his advice, but it does.
Cairns is a big, dark-haired, distinguished-looking man in his early
sixties who is far more interested in Plato than in pornography.
He is convinced that the ancient Greeks were the greatest people,
intellectually, who ever trod the earth. Even their pornography, in his
view, was superior to the modern product.
Cairns assumed the role of censor because of a curious chain of events,
which began when he successfully opposed government censorship banning
George Moore’s translation of _Daphnis and Chloe_--a book which shocked
the sensibilities of many people, including the Customs collector who
read it and ordered it banned.
A Baltimore book dealer had imported Moore’s translation with high
hopes for a large and lucrative sale in Baltimore and in other cities.
But Customs ruled the book was obscene under Section 305 of the Tariff
Act of 1930. This act says: “(a) Prohibition of importation--all
persons are prohibited from importing into the United States from
any foreign country any book, pamphlet, paper, writing, advertising,
circular, print, picture, drawing, or other representation, figure,
or image on or of paper or other material, or any cast, instrument or
other article which is obscene or immoral.... No such article, whether
imported separately or contained in packages with other goods entitled
to entry, shall be admitted to entry.... Upon the appearance of any
such book or matter at any Customs office, the same shall be seized
and held by the Collector to await the judgment of the District Court
as hereinafter provided; and no protest shall be taken to the United
States Customs Court from the decision of the Collector.”
Thwarted by this formidable language, the book dealer took his problem
to Cairns, who was then practicing law in Baltimore. Cairns appealed
the ruling by Customs to the Customs Court of Appeals. Then he cannily
persuaded the judge to hear the case without a jury--and to hear the
testimony of expert witnesses, including a psychiatrist, a professor
of English, and a newspaper editorial writer then with the Baltimore
_Sun_. Cairns tried to persuade a classics scholar from Johns Hopkins
University to testify for him, but the professor replied, “No, I will
not testify in defense of such a worthless book as George Moore’s
translation of _Daphnis and Chloe_.”
The trial procedure broke legal precedent. Previously the rule had been
that expert witnesses could not testify because they would usurp the
function of a jury. But Cairns was permitted to put his witnesses on
the stand.
Cairns wasn’t too sure of his psychiatrist and how he would react
to cross-examination by the government attorney on the question of
what effect the book would have on immature adults and children. The
psychiatrist handled himself very well under direct questioning, but
then the prosecuting attorney at the close of his cross-examination
said to the psychiatrist, “Would you recommend this book to be read by
everybody?”
At this point Cairns literally held his breath waiting for the reply of
the psychiatrist. His heart sank when the psychiatrist replied, “No, I
would not.”
The prosecuting attorney turned triumphantly and said, “That’s all,
your honor.”
Cairns simply could not leave his case in that precarious position. He
said to his witness, “Well, Doctor, would you recommend that everyone
read the Bible?” The psychiatrist replied, “No, I would not.”
Cairns won this case. The book ban was lifted. The result of the trial,
headlined in the daily newspapers, did not go unnoticed in Washington.
Soon after this case had been decided, Secretary of the Treasury Henry
Morgenthau decided something had to be done about the adverse publicity
received over the years by the Treasury Department and by Customs
because of disputed rulings being made on books, art and other items
being imported into the country. One of the most publicized cases
had involved the attempt by an importer to bring into the country
copies of James Joyce’s controversial _Ulysses_. The book had created
a tremendous stir in literary circles in Europe and among those in
the United States who could get their hands on a copy. Joyce’s use of
four-letter words and his then-shocking treatment of sex brought howls
of protest from many. There were outcries against any importation of
the book into the United States. Likewise, there was an outcry against
censorship among those who regarded Joyce’s work as an outstanding work
of literature, written in a style and with a realism which they said
raised it to a high level of art.
Joyce’s book went on Customs’ banned list. The case was taken to court
and the judge wrote a blistering opinion against censorship. The court
held that the book had to be viewed as a whole, and that one could not
judge it by picking out isolated passages from the text; when the book
was viewed in its entirety, it was not obscene.
About this time, also, Customs found itself in hot water because an
examiner refused entry for a shipment of photographs of sculptures of
nude men and women. The examiner took one look at the photographs and
ruled that they were pornographic. The trouble was that the pictures
were photographs of sculpture in the Vatican--a point which did not
seem to impress the examiner but which was noted acidly in the protest
against his ruling.
This combination of events, among others, persuaded Secretary
Morgenthau to look for someone who could bring the situation under
reasonable control. As Cairns tells the story: “Of course, I don’t know
what went on in the Treasury or why they turned to me, except that I
had beaten the government in the Baltimore case. I had been writing on
books for the Baltimore papers for a number of years and Eli Frank,
the chief counsel of Customs, knew about my work and my interests. The
story I heard was that after the chain of adverse publicity, Secretary
Morgenthau called on his counsel, Herman Oliphant, and said, ‘Find me
a lawyer who has read a book.’ So Oliphant called up the chief counsel
of Customs and passed on the word, ‘Find a lawyer who has read a book.’
That is how I got into it.”
Before “getting into it” Cairns decided to make a trip to New York to
interview those who had had a voice in banning the controversial works.
He wanted to know the Customs procedures and how those involved arrived
at their decisions. He decided the best starting point would be to
interview one of the Customs employees engaged in opening and examining
packages from overseas.
Cairns opened the interview by saying, “Tell me on what grounds you act
when you refuse entry for an item.”
The clerk replied, “Well, if I see a book with a naked woman in it, a
photograph, I hold it up.”
“I can understand that,” Cairns said, “but tell me about some other
cases that are not so clear-cut as a book having a picture of a nude in
it.”
“Well, did you ever hear of this _Ulysses_ case?”
“Yes,” Cairns said, “I have heard of that case. Did you handle the book
when it arrived?”
The man nodded. “Yes, I did. What happened was that when the book
came in I admitted it. There was another shipment and I admitted it.
There was a third shipment which I admitted, too. Then I began to get
suspicious. Here’s a book bound in paper and it was selling for fifteen
dollars. So I said to myself, it must be a dirty book. So I got my
knife and cut the pages. I cut the pages and when I got to the end of
the book, I saw the dirtiest words I had ever seen in my life. So I
held it up.”
Cairns nodded. “Who was the book addressed to?”
“It was addressed to an actress. She came down to see me and said, ‘I
want my _Ulysses_.’ I said, ‘Lady, I ain’t going to give it to you.
It’s a dirty book.’ ‘Well,’ she said, ‘at least let me look at it.’ I
looked at her and said, ‘Lady, are you married?’ She said, ‘No, I am
not married.’ And then I said, ‘Well, lady, I ain’t even going to let
you see it.’”
After this revealing interview, Cairns decided to work with the
Treasury and Customs in an advisory capacity. A procedure was set up
whereby questionable items were forwarded to him at Baltimore for his
recommendation before the Bureau made any formal ruling. The procedure
worked so well that it was continued through the years.
Cairns left Baltimore to join the Treasury in 1937 as the Senior
Assistant General Counsel. He remained with the Treasury until
December, 1942, when he came to the National Gallery in his present
post. Over the years, Cairns’ work as a “censor” has become
less difficult as the courts have become more liberal in their
interpretations of what constitutes obscenity and what does not. Cairns
now receives only about 5 to 7 per cent of the questionable imports and
he does not consider them to be difficult cases.
More than 90 per cent of the questionable items are what Cairns refers
to as “junk,” and “hard core” pornography. There never is any question
about the hard-core pornography. It consists of filthy pictures and
objects obviously manufactured with a lascivious and lewd intent.
Customs examiners have learned over the years to recognize such
shipments almost immediately by the wrapping of the packages, the names
of the shipping companies, and the countries of origin. For a time
France was the source of most of the pornographic material. Then it
was Italy. Then the source shifted again back to France. Then to India.
For a time Japan was the major supplier of pornography, and at present
Sweden is a leader in this field.
In some cases, Cairns advised test cases so that the court might
decide the issue and establish a legal precedent. One such case
involved the importation of birth control items by a doctor in seeming
violation of the law banning “any article whatever for the prevention
of conception.” Did the statute mean such items could not be imported
for medical purposes? Cairns thought it a point for the court to
decide--and the decision was that the statute was not intended to
exclude such imports by a medical practitioner.
Another such case involved the importation of acknowledged hard-core
pornography in 1950 by Dr. Alfred C. Kinsey, the Indiana University
professor whose controversial “Kinsey Report” on human sexual behavior
created a stir in the late 1940s.
The Kinsey case developed when Dr. Kinsey had shipped from Europe to
the Institute of Sex Research of Indiana University a case filled with
pornographic books, sailors’ postcards, and photographs of males and
females in the sexual act. Customs previously had banned such items
with no voice raised in objection. But a nationwide interest was
aroused when Collector of Customs Alden H. Baker at Indianapolis took
one look at the Kinsey material and declared it “damned dirty stuff.”
Baker refused to release the shipment to Dr. Kinsey and defended his
position by saying, “There is nothing scientific about it.... If you
saw some of these pictures, you wouldn’t think they were scientific.”
He shipped the material to Washington, where Customs officials--and
Cairns--agreed with the collector that it was unadulterated pornography
specifically banned by law.
Kinsey protested the material was necessary to his research and that
since it was for scientific study the government had no right to
withhold it from him and from his colleagues at the Institute. He
issued a statement saying, “You can use the Bible or almost anything
for obscene purposes. Any material you can think of can be made
obscene by perverting it to erotic stimulations.... The Institute of
Sex Research at Indiana University considers this issue is one that
concerns all scholars the world over who need access to so-called
obscene materials for scientific investigations which in the long run
may contribute immeasurably to human welfare.”
Kinsey appealed to members of Congress for an amendment to the tariff
laws which would permit him to have access to the material impounded
by Customs. Then he went to see Cairns, to ask for his help. As Cairns
recalled the meeting, “He came to see me about it and said that I had
admitted the works of Havelock Ellis and he felt he was entitled to
have the material on which Ellis based his studies. I said that may
be, but before you came to see me, you had asked Congress to amend the
statute to permit you to import hard-core pornography. How can I, as
an administrator, say that the statute doesn’t cover you when you have
already asked for an amendment which they have refused to grant?”
In any case, the test case served its purpose. The court held that
since the material was intended for scientific use, the statute barring
pornography did not apply in this case. The ruling did not mean that
the court was lowering the bars for importation of pornographic
material to everyone who wished to import it into the country. It
only meant that the bars were being lowered for the Institute of Sex
Research in its investigations.
Cairns considers it no great accomplishment to separate the obscene
from the artistic. “I have long been of the view,” he once said, “that
any man of letters can tell whether the impulse behind a book is
literary or pornographic.”
Once when asked if reading and viewing pornographic material over a
long span of years had had any effect on his own morals, Cairns grinned
and said, “According to the theory of censorship I should be fairly
corrupted by now--but I don’t believe I am. I just find the stuff
boring.”
20
OF TOY CANARIES AND PIRATES
One day in 1957 an examiner in the New York Customs Appraiser’s Stores
opened a packing case received from Switzerland. He lifted out a small
brass object resembling a canary cage. On a tiny swing in the cage sat
an extremely lifelike little bird. When the examiner wound a key in
the bottom of the cage, the bird threw back its head, opened its beak,
and burst into song. It ruffled its feathers and wagged its tail as it
trilled its merry little time.
The examiner called to a colleague nearby and said, “Hey, Joe! Come and
look at this one.”
He turned the key and they watched the little bird perform. The
examiner said, “Cute, isn’t it?”
“If my wife sees it, she’ll want one,” the other examiner replied. “It
certainly is beautifully made. How are you going to classify it?”
There was the rub. What was this tiny cage with the singing bird?
Was it a toy, dutiable at 50 per cent of its value? Was it a musical
instrument, subject to a duty of 35 per cent? Or was it, as the
importer claimed, simply a “manufacture of metal,” subject to a duty of
20 per cent?
The examiner disagreed with the importer. He ruled that the little
singing bird with the music box in the bottom of the cage was in fact
a musical instrument. This opinion was sustained by the appraiser. The
appraiser’s decision was supported by the Collector of Customs.
The importer took the case to court. His attorney called one company
witness who testified the imports were designed as ornaments for home
decoration. He said they could be used as a nice toy--but they weren’t
toys. And he had “never known it to be used in an orchestra.” Therefore
it could not be held to be a musical instrument.
After the court heard the testimony and listened to the trilling of
the tiny bird in its small brass cage, the court was moved to lyrical
language in its decision, saying:
It may be contended that this bird does not emit a continuous
melody, and that it is not an instrument upon which a chromatic
scale can be played.... Music is the one harmonious science that
dispells discord, softens the winds, and makes all nature kin. It
has quickened the step for the warrior in the field of battle; has
riveted the attention of the savage on the march of his enemy;
has stirred the ambitions of men to higher ideals; and caused the
beauty of the human heart to speak in friendliness and love....
Indeed, if it was not for sweet music, human life would be so
dreary as to be unbearable. It matters not whence it may arise,
from the throat of the opera singer or of the bird. From the
scintillating trills of the flute or the low notes of the Chinese
gong, music is yet the curious and most harmonious succession of
sounds conceivable. It is the anesthetic of life.
The instrument in question is a musical one, and the tuneful ear of
the Collector was correct in thus classifying it.
The protest is overruled.
The case of the Singing Canary underscores one of the most important
functions of the U.S. Customs Bureau--the classifying of millions of
imports which arrive in the United States and the determination of
their dutiable value. The Customs Appraiser’s Stores--the port depots
where the imports are examined--are sometimes a weird world in which
things are not what they seem.
Every schoolboy is taught that a whale is a mammal. But when whale
steaks reach the Customs examiners, they are classified as “fish cut to
portions.” A tomato is a fruit to a botanist. But to every housewife
and the Customs examiner it is a vegetable. Botanists classify rhubarb
as a vegetable--but in Customs’ language it is a fruit.