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Proceedings of a Conference (Littleton, CO: Fred B. Rothman & Co., 1993) © Tarlton Law Library Through the Great Depression on Horseback: Lawyers in Western Films of the 1930s Francis A Nevins, Jr.* on target in their panoramic portrayals of the many ways in which themes of law and lawyers and the legal system penetrate all sorts of manifestations in popular culture. I like what Rennard Strickland said about the works that scream out of their own time and place. For me these are the most interesting of the novels, the stories, the films, the television episodes, that relate to legal subject matter. A lot of the films that we saw posters of just now, I would regard as sort of peripherally relating to law, in slightly interesting ways, but if you were doing a course or a seminar, with time being a scarce resource, you couldn't really devote a lot of time to them. So, in terms of trying to get a grasp on the ways in which these themes interact in films, in fiction, whatever, you have to stress those works that go for the jugular. And it has been my experience that not only in films but also in novels, in stories, in popular culture in general, you do find in the most interesting works the most fundamental and direct connections between what you see on the screen, what you see on the printed page -- in so far as it deals with these themes -- and what is going on in the real world of the time when the film is made, when the story or novel is written. This, I think, can be seen in the Westerns we saw yesterday, all stemming from the Great Depression. One thing you learn from Westerns, if you watch a lot of Westerns, as I did when I was growing up and still do, is that you can learn nothing about the Old West from watching Westerns, but you can learn a great deal about the times when the various Westerns were made. You can learn a great deal about the thirties from Westerns of the thirties, you can learn a great deal about the forties from Westerns of the forties, and so on. And it's a very fruitful and relatively painless way, I think, of exposing younger generations to some of the history of the times before they reach awareness, through the disguised medium of the popular culture. And this applies not just to legal themes but to all sorts of themes; law is not the only theme in which works of popular culture engage their time. And when I talk about legal themes in Westerns made during the Depression, I could talk just as easily about some themes that have nothing to do with the law, but which also in the works of the thirties engaged their time. In the Western films made during the Depression there is one fundamental theme. There were hundreds and hundreds of Western films made during the thirties, but very few of them are known to general film scholars, who tend to believe, because they don't know any better, that no talking Westerns of any significance were made before John Ford's Stagecoach in 1939. Well, lots of interesting Westerns were made in the thirties. We're interested today in the themes of law and lawyers, and there weren't many law-related Westerns during the thirties, but what there were were quite interesting. Throughout the decade one finds a select assortment of law-related Westerns which do engage the desperation and anguish of the Depression in terms of the fundamental theme of economic exploitation. The earliest of the three that we ran yesterday, the Buck Jones picture, One Man Law, dates from 1932. If you saw it, you know that Buck Jones does not play a lawyer -- in fact there are no lawyer characters as such in the film -- and yet the film is absolutely and centrally about the conflict between rules of law on the one hand and the simple sense of decency of the community of the common people on the other. The story line basically is that Jones is tricked by the capitalist in town, the only one who has the nice suit and the neat mustache. (Capitalists in these films are generally portrayed the same way they are in Soviet films of the 1920s.) Jones is tricked by the unscrupulous capitalist into accepting the appointment as sheriff in the community, and what this unscrupulous capitalist has in mind is that he owns the land, he has leased it out to the various ranchers who have spent years improving the property, but he has never given them deeds, and then his partners back east sell these parcels of land to people in the east who want to come west, and of course they come and they have their deeds and say: "We demand our legal rights, we demand our land." The sheriff's job is to enforce the rules of law, to kick his friends off the property which they had improved, and to install the newcomers; in other words, to enforce legal cheating, legalized stealing. The film is quite centrally about the conflict that Jones faces and how he deals with it. The anguish of the Depression permeates this picture. The legal theme is crystallized in the scene where Jones goes to the wise old judge for advice on how to handle the situation and the judge tells him: "You have to stay in your role. Maybe we can turn the law back on him. We have to force him to return those deeds voluntarily." And that paradox crystallizes the whole essence of this picture. In case you didn't see it, I don't want to say any more about how it works out, but the film is a beautiful example from one of the worst years of the Depression, showing us how a picture which superficially is simply sixty minutes of escapist entertainment engages the fundamental theme of its time. Dozens of Western films of the thirties dealt with the evil banker foreclosing or about to foreclose the mortgage on the ranch that the young lady and her father own. Today we laugh at this as a cliché, but I believe we must keep in mind that this story line wasn't at all entertaining for the people who were watching these films in little towns in the western and southern and middle states of America during the 1930s. Losing their homes to a bank was the threat that dominated their lives; for many of them, it was reality. These little Western films, remember, were made by people who didn't have much money, who weren't making much money, and for people who didn't have much money and weren't making much money. If there ever was a proletarian cinema in this country, it was the B Western of the 1930s, and One Man Law is a good example of that. Going a few years further into the thirties, King of the Pecos, the John Wayne picture that we showed, is a beautiful example of the same themes at work. Now here Wayne does play a lawyer, and he is pitted against another lawyer, the kind that Oliver Wendell Holmes wrote about in "The Path of the Law" in 1897, when he talked about the proper definition of law being from the perspective of what he called "the bad man," that is, the man who cares nothing for right and wrong or morality, who will do anything that is in his own interest unless he is constrained by the social system. It follows, of course, that the job of the attomey is to keep his client just this side of the arbitrary technical line that divides legal and illegal conduct. This social Darwinian view of lawyers and law strikes me as the root of most of the negative portrayals of lawyers that one finds throughout American popular culture in novels, in stories, in films, everywhere. What is King of the Pecos about? We have once again a killer capitalist, Cy Kendall, the fat guy, who has taken over all the land, killed off everybody in his way, including John Wayne's parents, and Wayne grows up to become a lawyer and then comes back with both gun-fighting skill and skill as a lawyer and uses both to defeat the man who killed his parents. The imaginative framework of this film is really striking to me. I've seen thousands of Westerns; I've never seen one quite like this. The director, Joseph Kane, died in 1975. 1 never met him but I had some very interesting phone conversations and correspondence with him before he died. When I talked with him he was close to eighty, near the end of his life, but he told me that he had a McGovern bumper sticker on his car. That's consistent, I think, with the politics of this film he made in 1936. The film deals with a trinity: economic power, brute force, and the law. Each of the three main bad guys stands for one of the trinity and each has a physical object that represents him. Cy Kendall, playing Stiles, the fat capitalist, has as his physical symbol the big safe, the fireproof Salamander safe. He keeps all his money in that safe and it goes everywhere he goes, loaded on a wagon. He's even nicknamed Salamander because nothing will ever melt him either. The second member of the trinity is Stiles' tame lawyer, whose physical symbol is the law book, and the third is Stiles' tame killer, Ash, played by Jack Clifford, whose symbol, of course, is the gun. This is the trinity against which Wayne is pitted. And it's inter- esting to see that the lawyer is the first of the three that is disposed of -- not by Wayne but by the other two. Wayne defeats the lawyer in the civil suit, so Stiles simply has Ash kill his lawyer. The climax of the picture completes a perfect circle. In the first part of the picture Stiles and his gang had besieged the little homestead where Wayne as a boy and his parents lived, and had wiped them out. And in the final scenes Wayne and the good people of the community besiege this sarne place and set fire to it and wipe out the people who had killed Wayne's parents and stolen their property. I love the scene where the remnants of the gang race away across the desert and Wayne and his men go after them and there's a big wagon crack-up and you see Cy Kendall dying in the crash, rolling down the hill, and then Joe Kane has this wonderful shot where you see the fat man lying dead, and his safe lying dead beside him. A very evocative moment, I think. And then Wayne goes after the last of the three, Jack Clifford, playing Ash, the gunman, and takes care of him in a one-on-one. So here's another instance, I think, of how we have a simple little sixty minute picture, one of thousands made during the Depression, which centrally engages, through legal themes, the terrible conflict of its time. This takes us to 1939 and the third picture we showed, Legion of the Lawless, starring George O'Brien, whom I knew a bit also. I met him in 1980 when he was eighty years old. He looked about fifty and had an absolutely photographic recall of everything he had ever done. Marvelous, marvelous man. He had a stroke not too long after that, wound up in a nursing home and died in 1985. O'Brien, as you know if you saw the film, plays a lawyer, and this film, unlike most of the Western films of the thirties that deal with legal themes, presents a very positive, almost an Atticus Finch-like picture of the lawyer. Here we have a town which is literally split by a dividing line separating the haves and the have-nots, and you have the masked vigilantes (obviously a reference to the Ku Klux Klan who, in disguised form, appear in many Westerns from about 1936 to 1939), whose function it is to keep the oppressed in their places, and O'Brien comes in, the only lawyer in the community, and takes on the role of defender of the oppressed. This is a film in which we actually see the lawyer's function as upsetting economic exploitation, and subjecting anarchy and lawlessness and injustice to a regime of rules. That's about as positive an image of what lawyers do as American film offered until Gregory Peck played Atticus Finch in To Kill a Mockingbird. Rennard Strickland talked about Wyoming Outlaw. This is an- other of my favorite Western films of the 1930s dealing with a legal theme. It's also a John Wayne picture, one of the last ones before Stagecoach made Wayne a superstar. There are no lawyer characters in the picture but it's a very powerful, very depressing look at law and justice in another poverty-racked community. Now, I should point out that this film, unlike a lot of Westerns, is not set in the Old West in some unspecified decade or year late in the nineteenth century. It is set in the Depression. There are many Westerns made in the thirties that take place in the West but are set in the present or the recent past, and this is one of them. John Wayne is one of the trio of heroes, but really the main character in the film is Don Barry, who became a star largely as a result of this performance. He was literally the little guy destroyed in the Depression. He must have been a foot shorter than Wayne but he stole the picture from Wayne, playing a young man forced by economic hardship and economic exploitation and the oppression suffered by his family to turn outlaw, to take the law into his own hands. When he goes on the run, the whole world seems to go after him. I sometimes wonder whether Richard Wright saw this picture in New York when he was working on his famous novel about a young black fugitive, the first best-seller ever written by a black novelist, Native Son (1940). It's the same kind of thing -- a huge posse goes out into the wilderness chasing this man. Wayne, of course, tries to prevent the man from being gunned down, but the film, as you know, has a very tragic ending. It's somewhat prophetic of the later film High Sierra (1941), with Bogart winding up being besieged in the mountains in somewhat the same way, and also perhaps a bit prophetic of the sixties counterculture favorite, Billy Jack (1971). The director of Wyoming Outlaw was George Sherman, who died less than a year ago -- one of the last surviving Republic Pictures directors and the man who made a star out of Don Barry. Sherman directed a whole series of Westerns in which Barry starred between 1940 and 1944. Everyone called him Little Georgie because he was even shorter than Don Barry, but he was a giant. Most of his Westerns of the thirties and early forties were saturated with the thirties' social consciousness. He quite literally saw the world from the standpoint of the little guy, and you can see this perspective permeating so many of the pictures he made during the early forties. The Depression hung on in Sherman's Western films long after it had more or less dissipated because of the war boom in the real world. This is just a brief look at the way in which during one period of our history the themes of law, lawyers, and justice dealt with the crisis of the time in a popular genre. The same kind of thing happened of course in other periods of our history and in other genres, and it's still happening today. In my seminar we deal not just with film but also with novels, with, short stories, with television, and you can trace these same themes in lots of different ways. You can also trace some of the fundamental themes in novels, stories and films to the seminal works of literature that deal with law, lawyers and justice. I'll give you a few examples. Melville Davisson Post (1869- 1930) created the first significant lawyer character in American crime fiction, the prototype, the great-granddaddy of all the sleazeball lawyers who dominate the landscape of popular culture today. His name was Randolph Mason and he debuted in a book of short stories published in 1896. Randolph Mason has precisely the philosophy that Holmes was talking about in his then contemporary essay "The Path of the Law." There are a whole bunch of Randolph Mason stories, but most important is the first one, "The Corpus Delicti," in which Randolph Mason literally advises a client how to commit a cold- blooded murder and get away with it, how to admit in open court that he did it and then say: "But ha ha, you can't do anything about it." I won't tell you how it happens, but that's how the story works, and at the end the judge basically says: "You have beaten the system. Go." The other Randolph Mason stories are in the same vein but they deal with less serious crimes like embezzlement, so they don't really go for the jugular the way the first, the most memorable, and by far the best of these Randolph Mason stories does. There, way back in 1896, we find the fundamental model for everything we hate about lawyers in contemporary fiction and film. In the period right after World War I, the lawyer character in American popular culture was Arthur Train's Mr. Tutt, who was sort of the Atticus Finch of his time. Train described Mr. Tutt as looking something like Lincoln and something like Uncle Sam. Train (1875- 1945) was a lawyer who wanted to be writer, and he made an absolute fortune writing eighty or ninety Mr. Tutt short stories for the Saturday Evening Post, which was the network television of its time. The very earliest Mr. Tutt stories, such as "Mock Hen and Mock Turtle" (1919), are very interesting, lively, teeming with life, cynical. After graduating from law school, Train went to work in the prosecutor's office in New York City. This was in 1901, when waves of immigrants from Europe and Asia were coming to New York and there was lots of ethnic crime. Train prosecuted many of those people, and so we find lots of that atmosphere in the very early Mr. Tutt stories. In "Mock Hen and Mock Turtle" there's a Chinese tong war going on and Mock Hen, a man from one tong, avenges a murder in his tong by killing somebody from the other tong. Then he's prosecuted for murder and the whole thing is out of Alice in Wonderland -- they have to kill a chicken before the Chinese witnesses can be sworn in, and all sorts of things like that -- and the sensibility comes basically out of Lewis Carroll. Then a little later Train developed the typical Mr. Tutt pattern, which is not based on Alice in Wonderland but on The Merchant of Venice. A technical rule of law is being used for some evil purpose by a bad guy, and Mr. Tutt trumps the evil rule of law with a good rule of law, just as Portia did in The Merchant of Venice. Most of the Mr. Tutt stories, which ran in the Saturday Evening Post every few months throughout the twenties and thirties and into the 1940s, are designed to leave you with a warm fuzzy feeling about law, the legal system, and lawyers. That was the fundamental picture that most people got from the popular culture of law and lawyers in the twenties. In time, Mr. Tutt was supplanted by Perry Mason, and Arthur Train became more and more historically obsolete as Erle Stanley Gardner, who will be discussed by someone else later on, became the purveyor of legal themes to the popular imagination. During the years of World War II there was not much attention paid to legal themes in the popular culture except of course for Perry Mason novels. But after the war, a number of Hollywood movies came out which treated lawyers and trials in a bizarre, fanciful manner. Miracle on 34th Street (1947), with its trial of Santa Claus, is the model for the fantasy courtroom scene, and there are other light- hearted forties comedies in more or less the same vein. The Return of October (1948), with Glenn Ford and Terry Moore, is another one with a pure fantasy trial scene. This is a staple item in the few legal films that were made in the late forties. Then came the McCarthy era, the time of the witch hunts, and at least a few legal films reflect this crisis too. One of my favorites is Count the Hours (1953), starring Macdonald Carey and Teresa Wright and directed by Don Siegel, who went on to do Dirty Harry (1971) many years later. Carey plays a lawyer whose name, very significantly, is Douglas Madison. Like Atticus Finch in To Kill a Mockingbird later on, he is a small-town lawyer assigned by the judge to defend a member of a despised out-group who is accused of a horrible crime. In this case it's not a black man charged with raping a white girl; it's a migrant worker accused of the murder of his employer. Everyone wants to lynch this man, and Macdonald Carey loses all his respectable clients because he stands up for this unpopular guy. Obviously, this is a disguised version of the pressure that the American public was putting on anyone who dared defend unpopular causes during the era of HUAC, Joe McCarthy, and the Blacklist. A few years later Earl Warren became Chief Justice of the United States and American popular culture entered its first golden age of films and television dealing with law, lawyers and justice, which roughly coincides with the heyday of the Warren Court. Twelve Angry Men (1957) may be the beginning of the cycle. Then carne Anatomy Of a Murder (1959), To Kill a Mockingbird (1962), Cape Fear (1962) -- all of the films we tend to think of as the classics of the First Golden Age, along with television series like "Perry Mason" and "The Defenders." Most of these works reflected very positive views, very idealistic views of the good that lawyers can do. The legal system working at its best -- this is the leitmotif of the First Golden Age, with a few exceptions here and there, like that shattering Hitchcock film The Wrong Man (1956) that Rermard Strickland mentioned, which does not relate to the Warren Court at all but more to Kafka's The Trial and perhaps the Book of Job. In one sense, of course, it does relate to the Warren Court: you see this picture, which predates decisions like Gideon and Miranda and Mapp, and you say: "My God, those decisions were necessary." In all other respects, however, The Wrong Man is not intimately related to its time the way the other classics are during this period. Near the end of the First Golden Age comes a picture, one of my personal favorites, that in many ways is a better reflection of Warren Court jurisprudence than To Kill a Mockingbird. It's Man in the Middle (1964), with Robert Mitchum, the psycho in Cape Fear, this time playing the lawyer. It's a court-martial picture set during World War II, but it obviously reflects the realities of the Warren Court era. Keenan Wynn, giving the best performance of his life, plays a white racist maniac who blows away somebody else in his unit who has been consorting with black women. All the generals want to hang Keenan Wynn, get him out of the way. The only possible defense he has is insanity. Mitchurn is ordered to be the defense counsel but he is also ordered not to raise the insanity defense. And what the film is about is the ideals of legality eating into this man so that ultimately he destroys himself, not for an innocent black man accused of rape, but for a racist maniac who obviously is not worth the sacrifice of a good man's career. This film deals much more fundamentally with the realities of the First Golden Age than a picture like To Kill a Mockingbird, where things are really sort of easy for Gregory Peck in one sense, because he has a client who is a noble and oppressed innocent. Mitchuni's client is an oppressor, a racist, and guilty as hell. What claims does he have on the system, on us? Eventually, both in the real world and in film and fiction, there was a reaction against the Warren Court. That reaction is the leitmotif of the Second Golden Age, which we are still in. I can't date it from a particular movie but And Justice for All (1979) is one of the first movies in the cycle. The questions asked in most of the classic law films of the late seventies and eighties and the early nineties are: What has the Warren Court wrought? Aren't lawyers awful? Isn't the legal system terrible? We're all at the mercy of the monsters because the lawyers have gone over to their side and turned the legal system, turned the asylum, over to the madmen. Cape Fear (1962), the first version, a picture made in the heart of the First Golden Age, and actually predating Gideon and Miranda and Mapp and all those decisions, is really prophetic, however, of Second Golden Age pictures. I've run it every year in my seminar, and every year my students have told me that it's the best picture I show them, that and Hitchcock's The Wrong Man. The structure of Cape Fear is superb. Very, very quietly, Mitchurn comes into town. The way he walks, the way he looks, you can see he's an alien coming into this sleepy southern city, walking up the steps of the courthouse. He knocks some lawbooks out of a secretary's hand, he insults an old black janitor in the corridor, walks into the courtroom where Gregory Peck is arguing a case. You can hardly hear the dialogue in the courtroom, it's quiet, civilized, low-key. Here are rational, decent people settling their disputes in an orderly, honorable manner, and into this courtroom walks Robert Mitchum with that psycho look in his eyes. Already we know the theme of the picture. Mitchum is out to terrorize Peck and his family and rape his wife and rape his daughter. At each step Peck tries to invoke the legal system to protect his family against this sociopath who has a civil rights lawyer on his side. At each step the system fails. The cops roust Mitchum, they strip-search him, they call him "boy" and things like that. This is 1962 in a southern city. Talk about connections between film and the real world! Obviously this is what the police in southern cities were doing at this time against the blacks, against the civil rights activists. Here they're doing it against this psychotic who wants to rape and murder two women. Which side are we on? The film divides us against ourselves, tears us up. But the system fails to protect Peck and his family and eventually, of course, there is no law left but the law of the jungle. The last part of the picture takes place in the swamp. There is no dialogue at all; there is nothing but kill-or-be-killed. And then, in the very last minute of the picture, the filmmakers try to pull out of the direction in which the picture has been taking us and try to reassert faith in the legal system, because this is, after all, the First Golden Age. Sometimes we spend thirty minutes in class talking about the last two minutes of this picture, and whether or not the faith that Peck expresses at the very end is an earned or an unearned faith. When I heard that Martin Scorsese was remaking Cape Fear, I predicted in class several things, and it turned out I was right. One is that they would not turn the Mitchum character over to the law as Peck did -- they'd blow him away in the swamp and, of course, you know they did. I also predicted that the wife would have a lot more to do with blowing him away than Polly Bergen did in the first version. I was right about that, too. The second version is pure Second Golden Age. In some ways I think Scorsese closes up a lot of the holes in the first version, but then he creates a bunch of new holes of his own. But we'd be going far, far afield if I went into a detailed discussion of these two pictures. That's something perhaps for another conference, for another speaker, some other time. I hope that I have at least suggested some of the ways in which popular fiction and films, the best and most interesting of them anyway, can relate to the real world of the time they come from. This is an ongoing process that predated the birth of the oldest of us and will continue long beyond the death of the youngest of us. To get a grasp on how popular culture engages themes, both in general and in terms of the specific themes of law and lawyers, is what I think this conference is all about, and I am delighted to be a part of it. Thank you. * Professor of Law, St. Louis University, and author. |
