“It is a peculiar failing of man,” the Post’s correspondent sagely observed, “. . . that whatever is denied him, that he most earnestly desires.” The threat of being unable to order alcohol after 11:00 P.M. meant that “men who at home in other cities where liquor flows like water are temperate and even abstemious—when they land in Boston after 11 o’clock are transformed into seeming dipsomaniacs. In other words, the minute they find out they cannot get a drink, they are willing to commit anything short of manslaughter to get one.” Every Saturday night, the whole of New England “bore a distinct resemblance to the Fourth of July,” the commentator added. Commuter trains serving the region were standing-room-only, stuffed to the gills with drunks of all descriptions. “The life of the latter-day Puritan,” the Post concluded, “is not entirely devoid of alcoholic glee.”
But this ethanol-fueled, Independence Day–style revelry was not Bacchanalian enough for opponents of the Semicolon Law, who continued to lobby fiercely for an amendment to the statute. Advocates of the law, on the other hand, pointed to the raucous behavior of Massachusetts drunks as proof positive that alcohol was a bad influence. If this was how Bostonians behaved when they had fewer hours of liquor-buying time, who knew to what depths they might sink if given unfettered access to alcohol? The battle between the pro– and anti–Semicolon Law camps roared vigorously on. This was great news for another punctuation mark, the exclamation point, since the Semicolon Law was “the greatest provoker of profanity yet invented.”
Profane exclamations from Massachusetts citizens spurred the legislature to form a Liquor Law Committee tasked with scrutinizing the Semicolon Law. In 1904, the committee proposed a revised law that would allow innkeepers to sell alcohol until midnight, but would prevent them from going back to selling all night long, as they had done before the Semicolon Law was unearthed in the first place. This revision would mean that the statute would return to its original 1875 form, with a comma instead of a semicolon. Arguments both for and against were impassioned. “If every member of this house would vote as he drank,” sniped Representative Davis of Salem, “[the bill to repeal the Semicolon Law] would be adopted by a large majority.” Nevertheless, it failed, 57–132.
The matter was far from closed, however. In February 1905, the Liquor Law Committee convened a group of “friends and foes of the semicolon” to discuss the law. For neither the first nor the last time in history, a bunch of men sat around in a room fretting that given a taste of any kind of freedom (in this case, in the form of liquor), women might ride off the rails of decency. Arguments went on all day long, and tended towards hyperbole. If “liquor dealers” were allowed one extra hour to sell booze, a Baptist minister testified, it would “cause the downfall of dozens, scores, yes, even hundreds of young women in an increased degree.” The Reverend came by this opinion from having visited second-class hotels and “dance” halls—but these visits to questionable establishments, he hastened to add, were made purely from “a humanitarian standpoint.”
After the minister spoke, a representative for the Massachusetts hotel association, the wine and spirit dealers’ association, and the brewers’ association pleaded the opposite position. “All we ask is that innholders may sell liquor to their guests one hour longer at night,” the representative explained. “We don’t want the semicolon law abolished, and I hope the word ‘semicolon’ won’t be mentioned during the hearing. We’re not petitioning for any change in punctuation. We simply want one hour more.” One temperance advocate, B. B. Johnson, advocated instead for one hour less: citing a Glasgow law that had dialed back liquor hours and thereby cut down on drunkenness, he suggested liquor sales should end at 10:00 P.M., not 11:00 P.M., as the Semicolon Law specified. “Are you in favor of the sale of liquor at all?” one of the hotel association attorneys demanded, outraged by this new proposal to restrict the sale hours even more. “Only when it is needed as an antidote for disease,” Johnson piously responded.
Finally, after years of fighting, the legislature passed the proposed amendment, which was then put to a popular vote on December 11, 1906. The people of Massachusetts approved. This delighted the mayor of Boston, John F. Fitzgerald,* who saw the amended statute as a victory for “good sense and progressiveness” over “provincialism.” Good sense or not, it was not clear that the new regulations made any real difference in the drinking habits of Massachusetts residents; the New York Sun snickered that on the night the act went into effect, scarcely anyone was seen availing him- or herself of the extra hour of drinking time:
At last the “lid” was lifted. Boston was to be “gay.” New York and the devil were no longer to have all the fun. . . . Dionysus, ever young and fair, was to come out of the Art museum and ride tigerback through the restaurants. . . . The home of thought was to be the palace of sport. . . . [But] Bostonians are happier under restraint.
Apparently the wry commentator in The Washington Post had been right: people liked their liquor to play hard to get. Still, even if alcohol consumption hadn’t perceptibly increased after the law was amended, Massachusetts hotel owners felt they had cause to celebrate at their November 1909 banquet: former Senator W. A. Morse of Cape Cod said that when he had last attended the banquet, “members of the association were suffering from some errors of grammar in the laws of the state, but now they were not worried by either commas or semicolons.”
V.
The Minutiae of Mercy
The troubling questions of interpretation and intent that the Semicolon Law dredged up still haunt our justice system. Twenty-first-century legal thinking on the question of punctuation is ostensibly just an amplified version of the competing principles the Massachusetts Supreme Court weighed as it wrestled with the Semicolon Law case. “The modern Court recognizes that grammar and punctuation often clarify meaning,” allows a 2010 guide to statutory interpretation. Yet in determining a statute’s “true meaning,” “the Court remains reluctant . . . to place primary importance on punctuation”—and no wonder, when there is ample precedent for invoking centuries-old English law that asserts that “punctuation is no part of a statute.” Relying on this venerable principle of legal hermeneutics, the U.S. Supreme Court has ruled, for instance, that “punctuation is a most fallible standard by which to interpret a writing.” Taking it even further, courts have opined that “punctuation is no part of the English language.”
That latter proclamation that punctuation marks are not even part of the language you are reading right this very second seems utterly ridiculous at first but with some effort you can imagine where the idea comes from its perfectly possible to read writing with no punctuation whatsoever and understand it sure it slows you down and is pretty annoying but you damn well know what Im saying here dont you the fact is that its only in some cases that punctuation is or even could be dispositive.* Certainly when considering oral testimony that has been transcribed by a court reporter, there might be grounds to disregard punctuation in attempting to figure out what was said. But even so, the guidelines I just quoted don’t make much sense. For one thing, some punctuation marks can be considered shorthand for words. If I tell you that I want you to pick up some flour, eggs, and milk, the comma after flour pretty much means “and.” It’s really not clear that that comma is any different in status than a word. So everything ends up hanging on some person or persons determining what the “true meaning” of a statement is, and what kind of nebulous standard is that for a discipline of precision, which the law fancies itself to be?
Since it’s not always easy to toss out punctuation as not “part of the English language,” it’s really no wonder that entire cases regularly revolve around one tiny punctuation mark. In Ohio, a woman gets out of a parking ticket because of a forgotten comma. In the Philippines, the result of a mayoral election is voided because the court chooses to disregard a “semi-colon which the appellant views with a respect bordering on fetishism.”* Cases like these are a dime a dozen. But the stakes have sometimes been much higher than traff
ic tickets or cocktails after 11:00 P.M. or even election results. Men have lost their lives as a result of punctuation, and it has not always been the presence of a punctuation mark but sometimes its yawning absence that has troubled the legal system.
A particularly heart-wrenching case that was tried on the cusp of the Great Depression painfully illustrates the problems that can be caused by a missing semicolon. In 1927, two men were convicted of murder in New Jersey. The jury’s verdict and sentencing recommendation was written as follows: “We find the defendant, Salvatore Merra, guilty of murder in the first degree, and the defendant, Salvatore Rannelli, guilty of murder in the first degree and recommend life imprisonment at hard labor.” The judge interpreted the life imprisonment recommendation as applicable only to Rannelli, since that recommendation followed only the repetition of “guilty of murder in the first degree” after Rannelli’s name. Using this reasoning, the judge sentenced Salvatore Merra to death for the same crime. In an eleventh-hour appeal, Merra’s lawyer (and New Jersey senator) Alexander Simpson argued that the jury meant the life imprisonment recommendation to apply to both men—otherwise, the jurors would surely have used a semicolon to separate their verdict on Merra from their verdict on Rannelli, so that the verdict would have read: “We find the defendant, Salvatore Merra, guilty of murder in the first degree; and the defendant, Salvatore Rannelli, guilty of murder in the first degree and recommend life imprisonment at hard labor.” The prosecution, on the other hand, countered that the jury clearly intended for Merra to die.
When the case was heard by the Court of Errors and Appeals of New Jersey, all but two members of the court voted to uphold the death sentence. Their votes reveal a jaw-droppingly willful blindness to facts that ought to have spared Merra. In his dissenting opinion, Justice Samuel Kalisch noted that the verdict as originally recorded at trial read: “We find the defendant Salvatore Merra guilty of murder in the first degree and the defendant Salvatore Rannelli guilty of murder in the first degree, and recommend life imprisonment at hard labor.” Further, the jury was polled after the verdict and each juror repeated: “I find the defendant Salvatore Merra guilty of murder in the first degree and the defendant Salvatore Rannelli guilty of murder in the first degree and recommend life imprisonment.” And the trial judge, on petition, had certified the verdict as recorded. Yet now, many months after the trial took place, the presiding judge (who had become aware of Senator Simpson’s semicolon argument) suddenly insisted that the recorded verdict he had certified was “not an accurate statement of the verdict rendered by the jury,” and he “rectified” the verdict by adding new punctuation and swapping a “we find” for an “and”: “We find the defendant Salvatore Merra guilty of murder in the first degree. We find the defendant Salvatore Rannelli guilty of murder in the first degree, and recommend life imprisonment at hard labor.” And there was even more reason than judicial shenanigans to err on the side of life imprisonment: New Jersey juries were required to make an explicit recommendation of either death or life imprisonment in first-degree murder convictions. The fact that the verdict makes explicit mention only of life imprisonment should have meant that life imprisonment was the sentence recommended for both men.
Kalisch’s disdain for the trial judge in his dissenting opinion is clear, and the chilling conclusion he draws is worth dwelling on:
It does not appear that the trial judge had any notes of what the verdict was and the only inference is that he must have resorted to occult means, in order to recall the intonation of the voice of the foreman of the jury, his hesitation and pauses in order to portray what took place. To countenance such interference with verdicts of a jury, especially in a case involving life, is a serious inroad on the right of trial by jury. It renders verdicts unstable and leaves a citizen accused of crime at the mercy of judicial oppression. . . . I am unwilling to consign a human being to death on any such hair splitting refinement.
Merra’s appeal traveled upwards through the hierarchy of courts, finally making its way to the summer residence of United States Supreme Court Justice Louis Brandeis. Brandeis, perched in his classic Cape house overlooking Oyster Bay River in Massachusetts, reviewed the documents but declined to grant a writ of error. Merra went to the electric chair three days after marrying the mother of his two-and-a-half-year-old son a few feet away from the death chamber. Speaking in Italian to an “unusually large” crowd gathered to watch him die—the jailhouse wedding had amplified interest in his case—he protested his innocence until the last, but to no avail. The justices up and down the court system who authorized Merra’s execution had determined that the true meaning of the original verdict indicated Merra must die. What are we to make of the disturbing fact that dissenting justices found an opposite intelligible meaning?*
Aha! you might be thinking. So it’s true what all the memes say: punctuation is a matter of life and death. “Let’s eat grandma” really might result in somebody chowing down on a nice old lady, instead of summoning her to the Thanksgiving table as “Let’s eat, grandma” would. Let’s keep our commas and semicolons where the rules say they should be, and everything will be fine. Unfortunately it isn’t that simple, and the message of these cases is much darker. The moral of Merra’s story is that no matter how precise you are with your punctuation, and no matter how carefully constructed the legal rules for punctuation use and interpretation might be, there will almost always be a way to cast doubt on the origins of a punctuation mark, or on its original intended meaning, or on its most valid construction given its context. A zealous attorney might well be able to find a way to make “Let’s eat, grandma” justify sticking a fork in her, particularly if the judge and jury already lean cannibal.
Bias matters, and it matters more than most of us would like to believe it does when it comes to institutions we’re supposed to trust, like our legal system. Salvatore Merra, for instance, and his convicted codefendant, Salvatore Rannelli, had found themselves on trial at perhaps the worst possible time. Their original trial took place in 1926, and their appeal in the spring and early summer of 1927. The two men, Italian immigrants, were accused of murdering a paymaster in the course of a robbery. Their convictions for that crime took place in the shadow of one of the twentieth century’s most notorious cases: the trial and conviction of Nicola Sacco and Bartolomeo Vanzetti. Sacco and Vanzetti were also Italian immigrants. They were also accused of murdering a paymaster in the course of a robbery.* The jury had convicted Sacco and Vanzetti after just a few hours’ deliberation, but irregularities in the trial prompted appeals and protests from people around the globe urging that the verdict be overturned. Sacco and Vanzetti’s supporters were fighting against intense anti-Italian and anti-immigrant sentiment. The governor of Massachusetts formed a committee to consider executive clemency for the two convicted men. The clemency committee was headed by then-president of Harvard University Abbott Lawrence Lowell, whose career highlights included a stint as an official of the Immigration Restriction League, and the enforcement of segregation on the Harvard campus. When the Lowell Committee, which deliberated behind closed doors, emerged to declare that the trial had been fair after all, journalist Heywood Broun remarked with wry wrath, “What more can two immigrants from Italy expect? It is not every prisoner who has a president of Harvard throw on the switch for him.”
Was Salvatore Merra’s fate in part a product of those same prejudices of the time? It’s tempting to ask, too, if the enforcement of the Semicolon Law had something to do with anti-Irish sentiments in Massachusetts, where the Irish were stereotyped as (among other things) drunks. (Think of the phrase paddy wagon.) The owner of the bar in Fall River who was sued for selling after 11:00 P.M. had the surname Kelley. Of course, that doesn’t necessarily mean he was of Irish extraction, and even if he was, it doesn’t necessarily mean that the decision of the court was motivated by bigotry. It could be coincidence. But such coincidences deserve our attention and our vigilance. So many discrete racist or otherwise malignantly biased acts
can be excused as meaningless matters of happenstance, just as a puzzle piece looks like an abstract blob of nothing until hundreds of them are assembled all together and then suddenly—we see.
In one of Shakespeare’s most famous scenes, which forms the climax of The Merchant of Venice, the beautiful Portia dresses up in drag* to appear in court posing as a lawyer in an attempt to save her husband’s friend Antonio. Portia’s husband, Bassanio, has defaulted on a loan from Jewish merchant Shylock, and as guarantor for the loan, Antonio must pay the price: per their contract, Shylock may take from him a pound of flesh. Appealing to Shylock, Portia makes a lofty plea. “The quality of mercy is not strained,” she begins. “It droppeth as the gentle rain from heaven upon the place beneath.” She goes on in this vein, singing the praises of mercy, and finally asking Shylock to be merciful. “I want the law,” Shylock replies, resolute. And so Portia gives him the law: the terms of the contract specify that if Bassanio were to default, Shylock may collect a pound of flesh from Antonio. But, Portia cautions, the amount specified is exact. Shylock may take no more and no less than a pound, and he may take only flesh, not blood: is he certain he can be so accurate? Portia reminds him of the consequences should he err. “If the scale do turn, But in the estimation of a hair, Thou diest and all thy goods are confiscate.” Shylock, defeated, relents. In The Merchant of Venice, it isn’t a pie-in-the-sky ideal of mercy that tips figurative scales of justice, but the threat of real flesh tipping real metal scales that determines the outcome of the trial. If there is mercy in the outcome for Antonio, it is an incidental by-product of precision.
The Merchant of Venice, although fiction, illustrates a fundamental truth of the law: it turns on technicality and precision. To some degree, it must: if the law is intended to be accessible to the people to whom it accords freedoms and restrictions, those people ought to be able to understand it clearly. But no matter how technically precise and careful, the law will always be subject to interpretation. It is often the case that more than one interpretation of the letter of the law is available to us, so that justices disposed to keep bars open or close them down could both find a rationale for doing so. The same was true of the justices disposed to save or kill Salvatore Merra. And does anyone imagine, in an alternate Merchant of Venice in which the debtor was the Jew and the lender a Christian, that the pound of flesh wouldn’t have been paid in Shakespeare’s era? Perhaps in such an alternate version of the play, there would be mutterings from the bench about the “spirit” or “original intent”* of the contract Bassanio, Antonio, and Shylock entered into. To imagine that the law is safe from the biases of one’s time—be they the prejudices of sixteenth-century Venice, or twentieth-century New Jersey, or in our courtrooms today—is a dangerous dream.
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