The Question on Everyone’s Mind was Answered in 1902
by Owen WisterRespectfully Forwarded to 2020 by Michael Russell
“What are we to do if the courts fail to right a stolen presidential election?” was answered in an exchange between a western-frontier judge and a New England school teacher in Owen Wister’s novel, The Virginian. The topic of their discourse was theft given a pass by those to whom “ordinary citizens” had entrusted the law. The principle remains both moral and applicable 118 years later because it is the principle.
“Judge Henry,” said Molly Wood, also coming straight to the point, “have you come to tell me that you think well of lynching?”
He met her. “Of burning Southern negroes in public, no. Of hanging Wyoming cattle thieves in private, yes. You perceive there’s a difference, don’t you?”
“Not in principle,” said the girl, dry and short.
“Oh—dear—me!” slowly exclaimed the Judge.“I am sorry that you cannot see that, because I think that I can. And I think that you have just as much sense as I have.” The Judge made himself very grave and very good-humored at the same time. The poor girl was strung to a high pitch, and spoke harshly in spite of herself.
“What is the difference in principle?” she demanded.
“Well,” said the Judge, easy and thoughtful, “what do you mean by principle?”
“I didn’t think you’d quibble,” flashed Molly. “I’m not a lawyer myself.”
A man less wise than Judge Henry would have smiled at this, and then war would have exploded hopelessly between them, and harm been added to what was going wrong already. But the Judge knew that he must give to every word that the girl said now his perfect consideration.
“I don’t mean to quibble,” he assured her. “I know the trick of escaping from one question by asking another. But I don’t want to escape from anything you hold me to answer. If you can show me that I am wrong, I want you to do so. But,” and here the Judge smiled, “I want you to play fair, too.”
“And how am I not?”
“I want you to be just as willing to be put right by me as I am to be put right by you. And so when you use such a word as principle, you must help me to answer by saying what principle you mean. For in all sincerity I see no likeness in principle whatever between burning Southern negroes in public and hanging Wyoming horse thieves in private. I consider the burning a proof that the South is semi-barbarous, and the hanging a proof that Wyoming is determined to become civilized. We do not torture our criminals when we lynch them. We do not invite spectators to enjoy their death agony. We put no such hideous disgrace upon the United States. We execute our criminals by the swiftest means, and in the quietest way. Do you think the principle is the same?”
Molly had listened to him with attention. “The way is different,” she admitted.
“Only the way?”
“So it seems to me. Both defy law and order.“
“Ah, but do they both? Now we’re getting near the principle.”
“Why, yes. Ordinary citizens take the law in their own hands.”
“The principle at last!” exclaimed the Judge. “Now tell me some more things. Out of whose hands do they take the law?“
“What made the courts?”
“I don’t understand.”
“How did there come to be any courts?”
“How did there come to be any Constitution? Who made it?”
“The delegates, I suppose.”
“Who made the delegates?”
“I suppose they were elected, or appointed, or something.”
“And who elected them?”
“Of course the people elected them.”
“Call them the ordinary citizens,” said the Judge. “I like your term. They are where the law comes from, you see. For they chose the delegates who made the Constitution that provided for the courts. There’s your machinery. These are the hands into which ordinary citizens have put the law. So you see, at best, when they lynch they only take back what they once gave. Now we’ll take your two cases that you say are the same in principle. I think that they are not. For in the South they take a negro from jail where he was waiting to be duly hung. The South has never claimed that the law would let him go. But in Wyoming the law has been letting our cattle-thieves go for two years. We are in a very bad way, and we are trying to make that way a little better until civilization can reach us. At present we lie beyond its pale. The courts, or rather the juries, into whose hands we have put the law, are not dealing the law. They are withered hands, or rather they are imitation hands made for show, with no life in them, no grip. They cannot hold a cattle-thief. And so when your ordinary citizen sees this, and sees that he has placed justice in a dead hand, he must take justice back into his own hands where it was once at the beginning of all things. Call this primitive, if you will. But so 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. There is your principle, Miss Wood, as I see it. Now can you help me to see anything different?”
She could not.
“But perhaps you are of the same opinion still?” the Judge inquired.
“It is all terrible to me,” she said.
“Yes; and so is capital punishment terrible. And so is war. And perhaps some day we shall do without them. But they are none of them so terrible as unchecked theft and murder would be.”
From Chapter 33 of The Virginian, by Owen WisterPublished by The MacMillan Company, 1902Emphasis added