Volume 24, Numbers 3 & 4 (2000)
reprinted by permission Legal Studies Forum
THE OX-BOW INCIDENT by ROBERT LOUIS FELIX
http://tarlton.law.utexas.edu/lpop/etext/lsf/felix24.htm
The Ox-Bow Incident is a Western that tells of a vigilante "posse" that lynches three innocent men for a murder that has not been committed. The novel by Walter van Tilburg Clark and the Hollywood film, which is based on the novel, are expressions of American literary and popular culture. Both deal with vigilantism in the historic American west of cowboys, large spaces, sparse population, and a halting legal system, in ways that invite continuing speculation about the implications of vigilantism.
As a springboard for law and literature, the novel and the film provide narrative and dramatic illustrations of the evils caused by the deliberate or misguided failure to observe established practice in the administration of criminal justice: orderly progression within the limits of official power and rational decision making. The disregard or distortion of these elements by the "posse" become lynch mob is responsible for the injustice at the Ox-Bow. Both novel and film present vigilantism as destructive of due process and fidelity to law.
Clark wrote his novel in the late 1930s, and it was published in 1940. Nazi Germany was conquering much of Europe, and the United States was being swept into war. Clark's vision of society, unrestrained by the Hollywood star system and Hollywood's code of film values, is darker than that of the film. Vigilantism is a force of anarchy without much promise of correction.
The film was issued in 1943. War was world wide, the United States was in the midst of it, and patriotism was in full cry. In the Hollywood film version of the story the anarchy of vigilantism remains at the core of the story, but the story ends with the promise of correction. That justice will be served is a promise the novel does not make.
The film is a black and white small screen production that runs only seventy- five minutes. It was issued in 1943 by Twentieth Century-Fox. Produced by Lamar Trotti and based on his screen play from the novel, the film was directed by William Wellman. Of the well known actors who play the large cast of individual characters, Henry Fonda remains the most notable today. The film received an academy award nomination for best picture but did not win. For this reason perhaps, and because of its stern message, the film was an artistic but not a commercial success.
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The story is that of a hastily thrown together "posse" that becomes a lynch mob almost from the start. The hurried report of a fatal shooting and cattle rustling propels townsfolk and the rancher friends of the victim into an unchartered hunt for the supposed culprits. They come upon suspects and cattle in the mountains at the Ox- Bow, a high meadow in the Sierras, seize them and, after perfunctory examination and a grudging wait until sun-up, give them a moment to pray and then hang them. Almost immediately thereafter the sheriff arrives from the site of the imagined crime to report that the victim is alive and the cattle were fairly bought. The sheriff promises to investigate and to have the wrongdoers punished. The audience is left with the impression that however wrong the lynchings were, right may win out and justice will be done to those who deserve to be punished. The cowboys return to town, mope along the bar at Darby's saloon, at which some of them eavesdrop while Gil Carter, the cowboy played by Henry Fonda, reads the letter the hanged rancher wrote to his wife during his last hours. The letter is a mournful combination of final affections to widow and children and reflections on justice in the face of an unjust execution. A pot of money is gathered up along the bar, and Gil and his sidekick Art ride off to deliver the letter and the money to the bereft family. End of film.
The novel is not so clear about how the story may end once the telling is over. Clark's sheriff cannot pick the lynchers out of the snow flurries, and the return to town is much more ambiguous about how justice will (or will not) be served. This is perhaps the most serious thematic departure from the novel. There are structural changes, transposed speeches, and some switching of the two main characters to accommodate Fonda's star status. However, these do not substantially alter the theme of justice gone bad and the ways in which the story portrays the injustice of vigilante reprisal.
This theme can be explored by tracing the disorder in the criminal process, the confusion of roles, and the distortion of rational persuasion. Thus, the film's plot can be seen as a series of departures from the way in which the steps of the criminal process are supposed to be carried
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out, the blurring of offices that are established to perform those steps, and disregard for the function of rational persuasion in reaching conclusions about facts and in compelling belief in guilt or innocence.
Both the novel and the film can usefully be studied in a law and literature syllabus. They present a popular art form-the Western- with all its stereotypical images in plot, character, dialogue, language, setting and, in the film, music. Even if that were all, the book and the movie would still provide a good ride through time in a part of history which is peculiarly American-the west, the cowboy, and self-help in dealing with threats to the social fabric. But the story presents the dark side of do-it-yourself justice, and the work of the lynch mob is an expression of terrible injustice. A stock western would leave the matter at that, and in the simplification of moral values that is characteristic of melodrama, guide us through the spectacle of wrongdoing and redress to a proper moral conclusion. The novel does not do this in a finished way-it does not mean to-and although the film tries to pull it off with a more promising ending, it does capture much of the novel's unsettling narrative of mixed motives and disconnected social drives. The accomplishment of the novel and the film is to dramatize how a mix of characters, mostly law abiding in their daily lives, can come together to do justice, be quickly turned awry and then proceed in a grimly majoritarian way to commit the worst of all crimes against the person, murder in the guise of reasonable accusation, fair trial, and just execution.
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The film opens in the dusty, somewhat deserted looking town of Bridger's Wells, Nevada, in 1885. Two cowboys--Gil Carter (Henry Fonda) and Art Croft (Harry Morgan)--ride into town and enter Darby's Saloon to begin drinking and to catch up on news. They learn that Gil's girlfriend Rose Mapen has left town and that there is concern about rustling. As they gaze over the bar at a timeless saloon cliche--the painting of a woman on a sofa being approached by a man who never seems to reach her--they are soon joined by Farnley and Moore, two ranchers from the valley. The subject of recent cattle rustling quickly leads to animosity against Carter and Croft who are strangers. The now drunken Carter attacks Farnley but is quelled by a bottle to the back of the head from Darby the bartender. The distrust of Carter and Croft by the other ranchers and their isolation from the townsfolk will limit their capacity to withstand the injustice that is to follow.
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A kid rides in on horseback proclaiming that Larry Kinkaid, Farnley's buddy, has been shot to death down in the valley near his ranch, and looking for the sheriff-a sheriff who Art has noted "never got closer than Reno, except on special call." This is the report of a crime, and the decision whether to investigate is the next step in the administration of criminal justice. The kid's report is a mixture of excitement, self-importance, and garbled fact, with sufficient interest to prompt inquiry; and once the headstrong Farnley can be dissuaded from immediate pursuit, an attempt is made to form a posse.
At this point, the film remains full of ambiguous potential. To investigate is reasonable, to pursue is the readiest way to carry out investigation. Without a standing constabulary, i.e., a police force, a posse is fairly called for. Historically, the role of the posse comitatus (the force of the county) was to assist the sheriff in maintaining public order and to pursue felons. Here, the call to able- bodied citizens to form a posse is flawed from the start. The sheriff is away and without him a posse cannot be properly deputized. However, his mean spirited deputy, Mapes, jumps at the chance to assert his authority and give legal color to the group, some of whom are already disposed to go beyond the proper function of a posse and to carry out vigilante justice. "One good fast job without no fiddling with legal papers, and that's all there is to it," says one of the riders. Davies (Harry Davenport), the old storekeeper, is a voice of reason in the midst of this turmoil; and his devoted, but ultimately powerless, pleadings for lawful process and justice represent one of the ironies of the story. The role of Davies as the most articulate voice of justice is played off against the "might is right" theme that ultimately overcomes reason. His plea foreshadows the outcome and even sets its terms:
"Wait a minute men. Don't let's go off half-cocked and do something we'll be sorry for. We want to act in a reasoned and legitimate manner, not as a lawless mob."
Even Smith, the town drunk, paints Davies as a man of profit who would go along, too, if the hangman's rope were bought from him. Smith also engages in sinister banter with Gil, cautioning him against interference with mob justice.
Another inducement for the defectively formed posse to exceed its office is the portrayal of the victim by a lynch-hungry braggart, Bartlett:
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"Larry Kinkaid-one of the finest most god-fearing men that ever lived--is lying out there right now with a bullet hole in his head." To the appeal to pity for the victim is added an appeal to self-interest and security: "If you let that go, there won't be nothing safe-our cattle, our homes, even our women folks." Farnley immediately follows with an ad hominem barb at Davies: "Shut up, Grandma. Nobody expects you to go." The slur of age and womanly weakness against Davies helps whet the mood of the crowd to act quickly. The contamination of rational proof of guilt by irrelevant or unfounded considerations is an incentive to the looming distortion of order and the confusion of official roles.
Meanwhile, Davies attempts to form an alliance with the outsiders Gil and Art, and he sends Gil unwillingly to fetch Judge Tyler in the hope that judicial authority will stem the movement of the crowd. "If I can make this thing regular, that's all I ask," says Davies. Along the way, attention momentarily shifts to a well dressed man who sharply orders his son to get his hat and gun and come along. This is Major Tetley who becomes the film's eminence noire, literally its man on horseback.
Gil is met at Judge Tyler's house by his housekeeper Mrs. Larch, whose haughty and protective manner triggers a remark by Gil that mingles comic banality with the theme of the law's delay and indecision as an excuse for vigilante justice: "Well you can see why there are times the Judge don't seem to be able to make up his mind." They are shown into the Judge's study where he is closeted with the Deputy Mapes (Dick Rich).
Judge Tyler (Matt Briggs) is, in dress and manner, a caricature of the old-time politician, blustering and verbose. His ineffectiveness is in obvious contrast to the surly bully Mapes, who intends to seize the opportunity to command the makeshift posse whatever the outcome. Ironically, we learn from Mapes that Sheriff Risley is not in town because he has gone down to Kinkaid's ranch, probably for a couple of days. Tyler moans: "The sheriff's not here! Today of all days!" Reluctantly-"I haven't any police authority"-Tyler agrees to address the rapidly forming group at Darby's.
As they continue to assemble, Smith tries to goad the negro handyman-preacher Sparks into joining the crowd with an expression of the vulnerability of idle hands to the excitement of self-interested pursuit: "Better come along, Sparks. It ain't every day we get a hanging in a town as dead as this one." Sparks, however, is persuaded to go along by Smith's mocking promise of the chance that "there gonna be some praying done."
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Next to arrive is Ma Grier (enthusiastically played by Jane Darwell) whose oversized coarse good humor will add fun and comparable ruthlessness to the grim escapade that is forming. With quick repartee she answers Tyler's warning to the crowd against impeding the course of justice: "You can't impede what don't move, anyway."
Davies seizes upon the fact that Sheriff Risley is even now at the scene of the supposed crime. The prospect of a cold and perhaps useless ride begins to lose its urgency, and the promise of a good night's sleep in town after a few free drinks almost persuades all except Farnley to forego the cold night's ride. Farnley, the film's most single minded avenger and most bitter critic of the law's delay vows that the killers will not be returned for slow and easy justice. He spits out at Tyler that "Larry Kinkaid didn't have six months to decide if he wanted to die."
At this crucial point in the story, Major Tetley (Frank Conroy) arrives in the gray uniform of a confederate officer; he is perhaps a veteran of the war-or a sham, as Gil and Art will later surmise. Tetley is clearly accustomed to obedience and unchallenged command. His contemptuous inquiry whether the group is disbanding and the compelling news he brings of a reported sighting of three men driving cattle by Pancho, his Mexican hand, reanimate the group to action. The "raiders" have not left by the South Draw, which would allow them a night's rest; they have gone east by Bridger's Pass through the mountains over the old stage road to Pike's Hole-eight thousand feet up, but apparently a quicker escape route. The most incriminating aspect of the report is Pancho's description of the brand on the cattle which Farnley recognizes as Kinkaid's mark.
Pursuit has become irresistible, and Davies is reduced to negotiating the scraps of fair terms for the ride after the suspects. To his plea for the promise of bringing the men in for a fair trial, Tetley allows only the vaguest compliance in a way that hardly disguises his obvious leadership in the enterprise: "It's scarcely what I choose, Davies . . . . I promise that I'll abide by the majority will."
Judge Tyler's implorations against the formation of a posse under these circumstances and his sternly hollow order to "bring those men in alive," or else, are hardly more effective than Davies's appeal to Tetley. At Tetley's invitation, Mapes "deputizes" the group-joined somewhat reluctantly by Gil and Art lest they too become suspect-and they ride off out of town, twenty-eight in all, leaving Tyler, and by extension justice itself, isolated against the threatening sky. The very oath defectively administered by Mapes foretells the mischief to follow: "I hereby solemnly swear I am duly sworn as a deputy in the case of the
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murder of Larry Kincaid and I am willing to abide by the decisions of the majority-so help me God."
As the riders go out of town, they troop along in pairs or small clusters, Tetley and Mapes in the lead, closely followed by Farnley and Bartlett and then others, trailing back to Gil and Art, and finally to Sparks bringing up the rear, soon to be overtaken by Davies who has decided to come along in the hope of seeing justice preserved. When they come to a rest, Gil scornfully reveals to Art that "that renegade Tetley strutting around in his uniform-pretending he's so much! He never even saw the South until after the war-and then only long enough to marry that kid's mother and get run out of the place by her folks." A moment later, Gil and Sparks disconnectedly exchange views about the search. To Gil's weary observation that "It's a way of spending time," Sparks rejoins that "it's man taking upon himself the vengeance of the Lord." Sparks reminisces about the lynching of his brother, while Gil distracts himself with a slug of Darby's bad whiskey from his canteen. "Feels like fire creeping in the short grass. I think I'll just let her spread a minute." The moment reveals between the outsider cowboy and the outsider preacher a common ground of helplessness in the inevitable movement of the narrative.
Suddenly strange horses are heard, and a stagecoach is seen moving at great speed. The driver has mistaken the posse as robbers, and he attempts a desperate escape. His co-rider shoots at the horsemen and wounds Art in the shoulder. The tumult ceases and the affair is quickly sorted out. Once aware that they are not being pursued by robbers, the driver halts the stage in its precarious descent around the cliff road. The passengers are revealed as Rose Mapen (Mary Beth Hughes), Gil's old girlfriend, Rose's new husband, a possessive and somewhat dandy Mr. Swanson from San Francisco, and his sister Miss Swanson, whose manner indicates no frivolity. During the time it takes to tend to Art's shoulder wound, the recognition that takes place between Gil and Rose, full of ambiguity and reminiscence, piques Swanson. He haughtily reminds Gil that Rose is now his wife and that, as bridegroom, he is not yet ready to welcome the attentions of Rose's old friends. The coach takes off, leaving Gil flabbergasted. The episode is curious in the movie, arguably less so in the book, and seemingly useless except to introduce Rose Mapen (why? one may ask) and perhaps to further isolate Art and Gil by the gunshot wound to Art.
The group rides on in the cold night to the Ox-Bow where an arched tree standing alone against the sky symbolizes their mission. They have come at last upon their quarry-a fire is seen burning and cattle are heard. With ostensible dispassion, Tetley announces that the party
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should "avoid any shooting or rough work until they have had a chance to tell it their way." Tetley deploys his troops, and they move upon three sleeping figures wrapped in blankets around a campfire. Tetley orders them awake and, while they are held at gunpoint, Gerald, at Tetley's harsh command, awkwardly collects their firearms. They are an unlikely trio, a shrewd looking Mexican who professes not to understand English, a disshelveled old man, and an innocent looking young man, Donald Martin. Their hands are tied, and the group circles around them, all armed and some holding coils of rope. The lighting and the play of shapes of men and horses in the shadows give an eerie and frightening effect to the scene.
The purpose of the group to avenge murder is obvious at the outset. Ma Grier exclaims to the bewildered Martin that "most of the men ain't never seen a real triple hanging." The captives are bullied and menaced, particularly by Mapes and Farnley. When Tetley cuts off Farnley's prodding the Mexican with a gun after Bartlett claims to know something of the man's past, Farnley explodes at him. "I've had enough of you playing God Almighty! Who picked you for the job anyhow? We got'em and I say let's swing'em-before we all freeze to death!" Tetley cooly rebuffs Farnley and directs him to warm his hands at the fire.
Tetley proceeds to interrogate Martin (Dana Andrews) who, to the disbelief of listeners, tells that he has just moved into a place at Pike's Hole, which he bought, sight unseen, from the owner in Los Angeles for four thousand dollars. Martin allows that he may have been taken, but pleads that his story is true and can be verified by consulting his wife and children, who are not far away at the Pike's Hole place. He is refused, and a critical aspect of presenting a defense is foreclosed.
The inexorable movement toward a make-shift trial becomes more and more threatening as the group abandons the function of posse and assumes the roles of prosecutor, judge and jury, and, finally, executioner. Tetley, responding to Martin's angry outburst that he has a right to a trial, sums the matter up: "You're getting a trial, with twenty-eight of the only kind of judges murderers and rustlers get-in what you call this 'Godforsaken country'." From the crowd a menacing voice is heard: "So far, the jury don't like your story." When Martin states that he won't say another word without a proper hearing, Ma Grier reminds him that "this is all the hearing you're likely to get short of the last judgment."
Frightened by the rope held in front of him by Smith, the town drunk trying to be important, Martin admits that he has cattle with him, fifty head he claims to have bought from Mr. Kinkaid. Martin's explanation is plausible enough, but it feeds the assumptions of the
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posse regarding the murder of Kinkaid. Martin's plea that they seek corroboration of his story from Kinkaid himself reveals the deep division between Martin and the others regarding the truth of the matter. Farnley reacts in utter disbelief-"That's a good one! He wants us to wait and ask Larry Kinkaid"-and Martin is stunned to be told that "Kinkaid can't tell us anything. He's dead." To this Farnley adds the ever present concern about an unresponsive legal system, "the law's mighty slow and careless around here sometimes, and we're here to see it's speeded up."
When Tetley claims that they have been sent by the sheriff, Carter bursts out, "That ain't true!" Tetley's self-correction is at once an indirect lie regarding the legality of their pursuit and a sop to Mapes's vanity: "I beg your pardon-I should have said the deputy sheriff." Davies's challenge to the proceedings-"this is a farce and it'll be murder if you carry it through"-ends with an affirmation that he believes Martin is innocent. Ma Grier matter of factly states: "Then I guess you're the only one, Arthur." In a brazen exercise of power, Tetley briefly looks to Mapes to silence Davies. Like a dog at a nod from his master, Mapes grabs the helpless Davies out of the forefront and throws him into the shadows. The voice of reason is again repudiated and discredited.
To make matters worse, the well meaning Davies has unintentionally given Tetley the pretext to conduct a trial whose legitimacy Davies might concede. As he struggles against Mapes, he calls out: "If there's any justice in your proceedings, Tetley, it would only be after a confession. And they haven't confessed! They say they're innocent and you haven't proved they're not."
Meanwhile, as Tetley's interrogation of Martin proceeds, the unfortunate greenhorn becomes victim to the truth of his own story when he reveals that he has no bill of sale for the cattle. He purports to have bought them on the range from Kinkaid, who not having papers with him, promised to mail a bill of sale to him. This is received as an incriminating admission by Moore and other ranchers who know it is customary to give a bill of sale and who have never known Kinkaid to sell cattle after Spring roundup. The utter irony that truth is incriminating enhances the tragedy of the event in a way that points up the importance of fair proceedings, regularly conducted by proper officers in a way that ensures proof and avoids error as much as possible.
After Davies has been forcibly pushed aside, Gil and Art are threatened. Gil states: "If you've got any doubts, Tetley, I say let's call off this party and take'em to the Judge like Davies wants." Tetley's reply is cool and seemingly dispassionate as he offers Gil the
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opportunity to leave: "Otherwise your interruptions are going to become very tiresome." Art takes the menacing hint and calls Gil back "Take it easy. This ain't our picnic. If you keep on butting in, I've got a hunch it may be."
With Martin reduced to tears and trembling, Tetley methodically turns on the old man in the hope of extracting a confession, however treacherous. The old man babbles that the Mexican did it. As Martin protests that the old man is feeble minded, Mapes strikes Martin down in another brutal affront to justice. Bartlett now steps up again to declare that the Mexican (played with considerable effect by Anthony Quinn) is a gambler wanted for murder. The Mexican will not speak, the old man cannot speak coherently, and Martin will not take Tetley's lure of time to live in exchange for an accusation ("None of us killed anybody").
As the three men are untied and led away to a tree, Martin pleads for his family and for the chance to write them a letter. Knowing that the Sheriff will not soon arrive in the bad weather, Tetley allows a delay until daylight, grimly observing, "We don't want to give anyone cause for complaint." Just as quickly as the group assemble to carry out the hanging, they disperse to while away the time between three o'clock and sun up, some to eat the captive's food, some to revel, some to ponder, and the victims to order their last hours. The scene seems to last longer than the time it takes to view it. This is accomplished by spreading the audience's attention about.
Martin gives the letter he has been permitted to write to his family to Davies for delivery. Davies reads the letter, whose contents are not revealed, and in the hope of saving Martin attempts to show it to Tetley, who refuses to look at it. Martin, feeling betrayed and broken in spirit, is briefly outraged; but he and Davies, both decent men, reconcile.
While the group is diverted, the Mexican tries to escape on one of the tethered horses. He gets away momentarily, but is shot in the leg and brought back by Farnley and Bartlett. Yet another piece of incriminating evidence is revealed. The Mexican has Larry Kinkaid's gun, which, to the disbelief of the group, he claims, now in perfect English, to have found along the road. Removal of the bullet from the Mexican's leg is first attempted by Tetley's too nice son, Gerald, with a knife from Farnley; the boy, much to Tetley's silent disgust, has no stomach for blood. The Mexican takes the knife from the distraught Gerald (William Eythe) and removes the bullet himself with courage and aplomb, to self-accompaniment with a Mexican song. Then, with a deft throw, he plants the knife at Farnley's feet. This display of bravado
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and insolence does nothing to allay belief in his complicity in the murder of Kinkaid.
Davies now tries to show Martin's letter to Gil and Art and the others. When they refuse, he unsuccessfully challenges their fairness and their courage. "Is it because you've made up your minds. Or because you believe everybody else has and you're afraid to stand up for what you feel is right?" Art, seemingly shamed by Davies's description of Martin's letter, allows that Martin might perhaps be innocent, but insists that "all that kind of argument in the world can't stand up against branded cattle, no bill of sale, and a dead man's gun."
In a triumph of lawless rule making, Tetley puts the matter to a vote. "Gentlemen, I suggest we act as a unit so there can be no question of mistaken reprisals. Mr. Davies, are you willing to abide by a majority decision?" No answer. Davies stands diminished as the mob throws in, "Sure. Majority rules." A vote is taken, and only six others have joined Davies to oppose the hanging: Sparks, then Moore (in spite of his earlier acknowledgment that Kinkaid always gave a bill of sale for his cattle), Art and Gil, and another, and finally, to Tetley's surprise and astonishment, Gerald. The votes have been cast. The mob, in the solidarity of their mixed motives, have won. (The image of justice as a virtuous minority is clearer here than in the book where Gil and Art remain with the larger group.) Even though there is probable cause to hold the captives for further investigation, the desire to pursue vengeance at the cost of taking life has taken its inexorable hold on the majority.
While Martin and the old man wait helplessly for the execution to proceed, the Mexican asks to make a confession-giving Tetley a momentary hope to have the lynching legitimated by an admission of guilt-to a priest. Pancho will have to do as intermediary to hear the confession in Spanish and as messenger to convey the confession to a priest. As the early rays of sunlight begin to flood the scene, Pancho hears the confession, only a jumble of Spanish sounds to the audience. This obscures whether the confession is a statement of probable truth or proof for the confident surmise of the lynchers that the confession contains an admission of guilt. Since we are not permitted to hear the confession clearly, it doesn't matter whether it was in Spanish or English. Later, in another irony of the film, when the condemned are given two minutes to pray, we clearly hear the Mexican intoning the Lord's prayer.
Farnley and Mapes throw three nooses over the limb of the tree and others stake down the ends of the ropes. The three men are to be lifted onto the horses, which are then to be whipped out from under them.
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Tetley assigns the execution of this task to Farnley, who wants the Mexican, to Gabe Hart, and, malignantly, to his son Gerald. When Hart begs off, all but Ma shift their gaze and she agrees to do it. Gerald tries to refuse and is met with his father's fury: "I'll have no female boys bearing my name. You'll do your part and say nothing more."
In a tantalizing last second hope that the lynching may be averted, Davies tries to persuade Pancho to reveal the Mexican's confession. However, Pancho remains true to his commission and, unhappily, refuses to reveal what the Mexican has told him.
In the final moments, Martin urges Davies to find some trustworthy person to look after his family. Davies sorrowfully agrees. Martin, now in his last fury at the injustice of his fate, lashes out at Tetley (who has told him, "It's too bad, but it's justice."). "Justice! What do you care about justice? You don't even care whether you've got the right men or not. All you know is you've lost something and somebody's got to be punished."
Martin breaks completely when the Mexican sarcastically states, "This is fine company for a man to die with." When Martin turns on him-"Shut up! You shut up!-Mapes strikes him down and is himself struck down by Gil who has had enough of Mapes. In a scuffle that threatens to derail the execution, Gil is finally overcome. Tetley signals to Mapes to start the hangings; at his gunshot, Farnley and Ma whip their horses cleanly and they bolt out, leaving their riders to dangle at the noose and die quickly. Gerald remains fixed in place, unable to act, and Martin is left in the torment of incomplete death. After Tetley strikes Gerald senseless with his pistol butt, Farnley dispatches Martin with a rifle shot. The lynching accomplished, however badly, the party rides off; Sparks's voice is heard singing another spiritual as the shadows of the hanged men drift across the screen.
The final scenes of the movie proceed quickly, taking perhaps ten minutes. Along the mountain trail the party is met by two riders, Sheriff Risley and a rancher. The Sheriff's inquiry about the shooting is answered by three of the men, who, besides Tetley, are most responsible for what has happened, Mapes, Farnley, and Smith-the eager bully, the blood thirsty avenger, and the drunken hanger on. As in harmony, they answer serially: "We got'em Sheriff!" "Kinkaid's murderers! We got all three of'em!" "And hung'em, too, Sheriff!"
The Sheriff knows better. He has just left Larry Kinkaid with a doctor over at Pike's Hole, and has got the fellows that shot him. As Mapes recites the evidence against the hanged men, Sheriff Risley takes away the deputy's badge and asks Davies to reveal the culprits-"All but seven."
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The law has begun to reassert itself. Tetley, now displaced, remains motionless and without show of feeling. The Sheriff vows to the others that "God had better have mercy on you, because you won't get any from me!" The administration of justice promises now to become more predictable. Here the film is much clearer than the book, more reassuring, but less challenging to one's sense of trust in society. Hollywood promises to bring down the lawless in a way that the novel does not. In the novel, the snow flurries through which the sheriff purports not to recognize the members of the lynch mob, may represent the moral opacity of the community, or perhaps worse, its capacity for moving on.
On the ride back to town, Gil asks Davies to let him read Martin's letter. Back at Bridger's Wells, the men enter Darby's Saloon. Tetley, now isolated, rides on alone, with Gerald some distance behind. Not unpredictably, Smith says, "If you ask me, that Tetley's the one we ought to lynch!"
Tetley enters his house, and Gerald follows him to find the door locked against him. Gerald denounces him in a nearly hysterical diatribe, whose main charge is that Tetley is an unfeeling monster governed by power and cruelty toward the captives, without concern for their guilt or innocense, and without compassion toward him for his weakness and cowardice. A shot is heard. Tetley obviously has taken the only way out.
Back at Darby's, men are lined up along the bar. Gil tells Art that even Mapes has chipped in for a pot of about five hundred dollars for Martin's wife. Art's reply sums up the cruel reality of the episode, "Not bad for a husband who don't know any better than to buy cattle in the Spring without a bill of sale." Gil now reads Martin's letter to Art. It is an affectionately bittersweet farewell to his wife, even expressing compassion for the otherwise good men who went along with the lynching-"They're the ones I'll feel sorry for, because it'll be over for me in a little while, but they'll have to go on remembering for the rest of their lives." As others begin to gather around Gil and Art, Gil reads on
A man just naturally can't take the law into his own hands and hang people without hurting everybody in the world, because then he's not just breaking one law but all laws. . . .
Law is a lot more than words you put on a book, or judges or lawyers or sheriffs you hire to carry it out. It's everything people have ever found out about justice and what's right and wrong. It's the very conscience of humanity. There can't be any such thing as civilization unless people have got a conscience, because if people touch God anywhere, where is it except through their conscience? And what is
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anybody's conscience except a little piece of the conscience of all men that ever lived?
Without ceremony, Gil and Art ride off to deliver the letter and the money to Martin's wife, leaving the town as before, dusty and a little deserted. The ending is sympathetic, but it need not have been motivated by the letter, the contents of which remain unrevealed in the book. The sentiments about justice, perhaps a bit lofty for a man with a rope around his neck, are, in substance, expressed earlier in the book by Davies in opposition to the lynch mob.
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If the sole purpose of the Ox-Bow Incident were to demonstrate that lynching is bad, a documentary film would have done as much and perhaps done better. A real murder would have required more pointed focus on the need for adherence to legal forms than does the absolute waste of innocent lives when no crime has been committed. When the person convicted is truly guilty of the murder (or crime generally), the legal system has expended its formal efforts successfully to establish all the requirements for proving guilt beyond a reasonable doubt. However, adherence to legal forms needs more to commend it than getting the right results. Since absolute truth regarding guilt is not possible in all cases, some toleration of error is necessary, and proof beyond a reasonable doubt manages the risk of error in a way that is most favorable to the accused. When legal forms are adhered to, the system demonstrates its fidelity to law, whether the accused is found guilty or not. If the accused is found guilty, the system has worked perfectly. If the accused is found not guilty, the system remains intact at the cost of preferring a high standard of proof to a system that tolerates greater risk of error in finding innocent persons guilty.
The Ox-Bow Incident involves the grossest miscarriage of justice, the lynching of innocent men for a crime that has not been committed. But this is a lesson of hindsight if one allows to the charactors in the story a perspective that reasonably assumes that Kinkaid has been murdered, or at least that the report of his killing bears reasonable investigation. Then the formation of a posse is properly called for and the apprehension of the suspects for return to the next legal authority to deal with the matter seems appropriate, especially in view of so much circumstantial evidence pointing to probable guilt, if not guilt beyond a reasonable doubt. However, proof of the corpus delicti rests upon unverified report, and the proceedings beyond the apprehension of the suspects, if not from the very beginning, are mere vigilantism.
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The indictment of vigilantism in the Ox-Bow Incident rests importantly on the premise that proper allocation of roles is a necessary component in the orderly administration of criminal justice. The division of official functions in the legal system is required, not simply because the total of functions cannot be performed without division of labor, but because division of viewpoints enhances the management of persuasion regarding the numerous steps in the sequence of official actions that constitute the orderly administration of criminal justice. Otherwise, vigilantism, in which all or most of the functions of administration are performed by the same persons, might have its merits, particularly in a setting in which the legal system and those officially charged with administering it operate inefficiently or corruptly.
The Ox-Bow Incident shows us the abuse of the requirements of proof because the conduct of trial and judgment is performed illegally by a group whose only proper role is that of posse. Respect for the point at which the risk of error presents a greater concern is required as the process goes through its several stages through report of crime, investigation, pursuit, accusation, trial, verdict, and judgment. By contrast, the derailment of the proper sequence in the administration of criminal justice is more likely to be found today in the misconduct of officials in roles they are properly charged with carrying out-the crooked policeman, the corrupt judge, the bribed juror-than the abandonment of restraint by vigilantes who choose to perform all roles and take over the legal process beyond the confines of their role as posse.
The due process theme of The Ox-Bow Incident is, of course, of central importance to the story, but the greater contribution is to show the interaction of human beings who believe in due process as desirable but slow and sometimes mistaken and the extent to which they are willing to forego its requirements in the service of other goals-some higher, some lower-all of which involve understandable and sadly human compromises.
In the Ox-Bow Incident, Hollywood has chosen a more didactic approach to teaching the lesson of fidelity to law than Clark chose in the novel. This is, of course, at the expense of fidelity to source, but it is a clearer argument--and arguably healthier--for fidelity to law in popular culture than Clark's somber vision of a society incapable of justice. In the film, at least, wrongful conduct is likely to be punished, the evils of vigilantism are exposed in their grossest commission of error, and we are reassured that a few good men, with whom we can more happily identify, exist to restore hope in the promises of fidelity to law, if not in
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its everyday perfection. Who knows? The good deed of Gil and Art to see to the needs of Martin's widow and children might lead to domestic tranquility. They could pick up the cows that may have been left stranded at the Ox-Bow, Gil and the widow might hit it off in Ox-Bow, the Sequel, and Art might go on to pursue a literary career. (He is, after all, the first person narrator in the novel.)
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ENDNOTES
* James P. Mozingo III Professor of Legal Research, University of South Carolina School of Law. A version of this article is scheduled to appear in a book of essays about law and film entitled Screening Justice edited by Teree Foster, Rennard Strickland, and Frederick Dennis Greene and appears here with their permission.
1. For earlier discussion and analysis of the film, with some comparisons with the novel, see Harry F. Tepker, Jr., The Ox-Bow Incident, 22 Okla. City U.L. Rev. 1209 (1997). For more detailed and critical comparison of the film and the novel, see Mary Beth Crain, The Ox-Bow Incident Revisited, 4 Literature/Film Quart. 240 (1976).
2. Quoted dialogue is from the film and follows the Lamar Trotti screenplay. See Lamar Trotti, The Ox-bow Incident, in John Gassner & Dudley Nichols (eds.), BEST FILM PLAYS OF 1943-1944 511-560 (New York: Crown Publishers, 1945).
Last Updated: November 06, 2003. Copyright 2003. All Rights Reserved.
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