Part 23

However the Customs examiner, failing to perceive the artist’s message, ruled that the importation was not a work of art. He held that it was a manufactured object whose chief value was in the vegetable fiber, or burlap sacking. Under this ruling, the import was dutiable at 20 per cent of the value placed upon it by the artist.

The examiner’s ruling posed an unusual problem. Art experts agreed that Dr. Burri’s work was not a painting--but a collage. And Congress had failed to mention collages in the categories of art held to be duty free, an oversight thought by some to reflect no credit on the Congressional artistic sense.

Alfred H. Barr, Jr., director of museum collections of the Museum of Modern Art, and Leo Castelli, owner of a New York art gallery, were among those who came to Dr. Burri’s defense in court. They agreed his collage was an original work of free fine art and they described Dr. Burri as one of the first half-dozen artists to emerge in postwar Italy with a world-wide reputation. His works had been exhibited in the New York Museum of Modern Art, the Carnegie Museum in Pittsburgh, the Allbright Gallery in Buffalo and other well-known museums.

The court reluctantly held, however, that since Congress had failed to include collages in the free fine arts, an import duty of 20 per cent would have to be paid--a ruling which later led to Congress amending the law to permit collages to be imported free of duty.

These cases and others moved leaders in the world of art to petition Congress to change the tariff laws governing the entry of works of art, and to remove the absurdly restrictive language which had caused so much embarrassment not only to the artists and to museums, but also to Customs and the government itself. As a result of these petitions, Senators Jacob Javits of New York and Paul Douglas of Illinois introduced in 1959 a bill to amend the tariff laws to permit free duty for all fine art and to eliminate the old definitions which had bemused Customs examiners. The bill was passed by Congress.

Actually, the slings and arrows hurled at the Bureau in the disputes over abstract art obscured the fact that over the years the Bureau had developed a good many experts whose opinions were valued highly by museums and leaders in the world of art. The Bureau also has some of the country’s leading experts on appraisals of a wide range of imports. It even boasts that it has a man who can look at a hog’s bristle and tell whether the hog was raised on the China slope of the Himalayas or the Indian side of the mountain, a bit of esoteric knowledge which is not as useless as it might seem. Little is heard of the fact that almost daily these men protect American dealers, collectors, and the buying public from forgeries, fraud, and unfair trade practices.

Thirty years ago the country was being flooded with fake antique silverware from England. In many cases an old hallmark--authentic in itself and perhaps 200 years old--would appear on a beautiful teapot. To all outward appearances the teapot was an authentic antique 200 years old. But what had happened was that an expert silversmith had lifted the hallmark from an inexpensive spoon and then soldered it into the teapot so smoothly that only an expert could detect the fakery.

There is little chance for such fraud today, even though dealers and collectors import each year more than $2 million worth of antique silver and old Sheffield, largely from England. Much of the credit for this protection is due to a dapper little man named Nathan Nathanson, who is one of the world’s leading experts on silverware. Nathanson is a small, bouncing man with a bristling black moustache and an infectious enthusiasm for his work. He was reared in Brooklyn and as a boy served as a jeweler’s apprentice. He became fascinated with metals and gems. The youth haunted museums, art galleries, antique dealers’ showrooms, and libraries, studying everything he could find on the subject of silver and old jewelry. He pursued his interests with study at Columbia University and then joined the Customs Bureau, where he quickly became recognized as an authority in his field. As a result of these years of study, Nathanson usually can tell within five years when an antique piece of silverware was made, the name of the artisan who made it, the city in which it was made, and the original owner of the piece. This he is able to do through his knowledge of the hallmarks on the silver--the symbols which were first stamped into silver pieces by the ancient guilds of England during the reign of King Edward I in the year 1300.

During the last 200 years, hallmarks have been an important guide to those versed in the lore of old silver. But of equal importance is a knowledge of the patina of old silver--that mellow coloration which is given to silver only by time and which no one yet has been able to duplicate. The expert must also know the distinctive designs from each period.

Unscrupulous silversmiths have several methods of faking antique silver. The most commonly used fraud is the transfer of a famous hallmark from a small piece of silver to a large tray, coffee pot or teapot, a process known as “sweating.”

One simple method to detect such a graft is to breathe on the hallmark. The warm breath in most cases will make the graft lines show up. The infallible method is to heat the silver--and this can only be done safely by an expert. Under strong heat the graft lines come into view.

Another method of forgery is to take a valuable and authentically old piece of silver, make a cast of it, and from the casting create a duplicate. The new silver piece is “aged” with an artificial patina. But no matter how good this job might be, the forgers always leave after casting tiny marks and other imperfections which the expert is able to spot by close study. Nathanson insists that even if the job were so well done that an expert missed the telltale marks, he could not be fooled by a phony patina.

Nathanson and his colleagues have their own quiet moments of triumph when they pit their knowledge against that of well-known importers. In one case a New York importer objected to paying duty on a loving cup which obviously was much more than a century old and qualified in his opinion for free entry. He argued that this loving cup was absolutely authentic and that all Nathanson had to do was look at the patina of the silver and also at the hallmarks. “Anyone can recognize those hallmarks and see that they are legitimate,” the importer said.

But Nathanson was quite sure there was something wrong with this piece of silver. The design was not quite right for its period. The hallmarks were genuine. There was no evidence that they had been tampered with. The patina, without doubt, was that of a very old piece of silver, and the sheen could not have been imparted by any chicanery.

Finally he suggested to the importer that they take the loving cup to the workshop of the importer, where his own silversmith could heat it to a near-melting point without doing damage. As they watched the silversmith carefully heat the silver, Nathanson saw that his suspicion was justified. The heat showed up definite lines where a spout had been removed from the “loving cup” and the hole patched over very expertly with silver to change the shape of a teapot and convert it to a loving cup.

Under the law, this piece of silver--even though it was far more than a century old--could not meet the requirements for free importation because it had been changed from its original form.

Many antique dealers are upset by the fact that they import what appears to be a legitimate antique only to find that it does not qualify for free entry because it has been tampered with at some time in the past. For example, one importer brought into the country a very old Oriental panel which had been made into a modern coffee table. He declared the table was entitled to free entry because the panel was an antique. Customs did not agree with the dealer’s viewpoint. While the panel alone would have been permitted to enter free of duty, once it became a part of a modern piece of furniture then it no longer met the legal requirements. This meant that the importer not only had to pay the regular rate of duty but also a penalty of 25 per cent--a penalty which is used by the government to discourage the practice of mislabelling imports.

In the eighteenth century in England it was common practice to use a 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?”