For those of you who read The Virginian, remember how the judge brought Molly around to accepting that mob-hanging a rustler was perfectly justifiable? His stance was that "far from being a defiance of the law, it is an assertion of it—the fundamental assertion of self-governing men, upon whom our whole social fabric is based."
I wonder how Judge Henry would have fared in a debate with Walter Van Tilburg Clark's Arthur Davies, who believes otherwise:
And he went on to prove how the greater "we," as he called it, could absorb a few unpunished criminals, but not unpunished extra-legal justic. He took examples out of history. He proved that it was equally true if the disregard was by a ruler or by a people. "It spreads like a disease," he said. "And it's infinitely more deadly when the law is disregarded by men pretending to act for justice than when it's simply inefficient, or even than when its elected administrators are crooked."
"But what if it don't work at all," Gil said; and Winder grinned.
"Then we have to make it work."
"God," Winder said patiently, "that's what we're tryin' to do." And when Davies repeated they would be if they formed a posse and brought the men in for trial, he said, "Yeah; and then if your law lets them go?"
"They probably ought to be let go. At least there'll be a bigger chance that they ought to be let go than that a lynch gang can decide whether they ought to hang;" Then he said a lynch gang always acts in a panic, and has to get angry enough to overcome its panic before it can kill, so it doesn't ever really judge, but just acts on what it's already decided to do, each man afraid to disagree with the rest. He tried to prove to us that lynchers kenw they were wrong; that their secrecy proved it, and their sense of guilt afterward."
Davies goes on to say (as if in response to Judge Henry, who believes ordinary citizens, who made the courts and laws, can take the law back into their own hands when dealing with a cattle-rustler) that "time, precedent, and the consent of the majority" are what enable an ordinary citizen, no better than one in a lynch gang, not to commit a "sin against society" while serving on a jury.
Did the Virginian head up a lynch party? Did he have the consent of the majority behind his actions? Can a jury, to use Judge Henry's parlance, be "a withered hand?"
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