The sword of human justice trembles over you and is about to fall upon your guilty head.
        -"Hanging Judge" Isaac Parker

    From 1873 through 1896, eighty-seven men were executed on the gallows at Fort Smith. All the
    men executed were convicted of rape or murder. After the Civil War, there was a mandatory federal
    death sentence in cases of rape or murder.   Of the eighty-seven men executed here, seventy-nine
    were sentenced to death by Judge Parker. During Judge Parker's twenty-one year tenure, a total of
    160 death sentences were handed down. Of that number, 43 were commuted to life in prison or
    lesser terms; 2 were pardoned by the President; 31 had appeals that resulted in acquittals or
    convictions overturned; 2 were granted new trials and discharged; 1 was shot and killed while
    attempting to escape; and 2 died in jail while awaiting execution.
        -Executions at Fort Smith, 1873-1896 (Fort Smith National Historic Site, National Park Service)

Perhaps no other aspect of conservatism creates more professed confusion in people's minds than the apparent contradiction between its libertarian impulse on the one hand and its law and order aspect on the other.  Opponents of conservatism gleefully leap upon this perceived contradiction and portray it a kind of hypocrisy.  It is, of course, no such thing.  Rather, the critics understanding of conservatism is too shallow for them to reconcile these two seemingly competing ideas.

In fact, though conservatism does celebrate liberty and freedom, it proceeds from the assumption that it is only possible to enjoy these blessings in a society where order has been established.  Where Liberalism posits a state of nature in which Man lived in pastoral harmony, Thomas Hobbes, who is often, unfairly, overlooked in tracing the history of conservatism, envisioned quite the opposite.  He wrote about the state of nature as a place where life was "nasty, brutish, and short."  This was so because, in the absence of any mutually agreed upon restraints, it is every man for himself, an environment in which sheer strength, superior intelligence, and naked treachery reign.  Where Liberalism views civilization as a corrupting influence which destroyed the hitherto communal idyll, Hobbes conjectured that government and the state were created precisely because men felt such physical insecurity from one another that they were willing to give up some measure of their previously unrestricted freedom to a central authority, which would then enforce certain behavioral standards, in order to protect men, one from the other.

It is only once such an authority has been established, and once men have agreed upon the standards by which they will be bound, that such innovations as capitalism, democracy, and protestantism--the freedom-guaranteeing, but order-dependent, cornerstones of Western Civilization--are possible.  The freedom-guaranteeing aspects of these -isms is well understood, but their order-dependent nature should also be obvious.  Democracy can only function as intended when the victors in an election are bound by the laws and traditions of the society.  If the winners could exercise unlimited power, could trample the rights of their opponents, there would be little to distinguish democracy from authoritarian forms of government.  Likewise, capitalism, in order to function, requires that both parties to a contract be required to perform the obligations they have incurred.  It has become commonplace to speak of the power of the Free Market, but it is important to recognize just how strictly we govern the behavior of the actors within the market.  There is a huge difference between the idea that the government should not control what kind of car is produced and what kind you have to buy and the notion that government has absolutely no role to play in a situation where you accept delivery of a car and refuse to make payments on it.  As for protestantism (please note the small "p"), the individual's willingness to accept that his neighbors may worship differently, may even have a different conception of God,  is predicated on their willingness to allow him to worship as he pleases.  Thus, each of the great -isms which undergird the great freedom's which we in the Judeo-Christian West take for granted, can be seen to depend on the preexistence of the rule of law and on the enforcement power of the state.

The difficult task that remains, having once established this politico-religio-economic trinity, is to maximize liberty, without sacrificing order, to retain basic security, without extinguishing freedom.  All of human history, and every social issue, can really be boiled down then to the eternal tension between security and freedom.  Where governments rise up promising absolute security, it is certain that they will do away with freedom.  But where freedom is absolute, where anarchy reigns, insecurity is so great that the average man can not enjoy the benefits of freedom; death lurks in the fist of everyone around him.

The ideal way in which to maintain the delicate balance is through an agreed upon societal morality.  Where such a morality prevails--as did Judeo- Christian ideals in the West until recent years--behavioral standards can be internalized, with every member of society understanding what is expected of him by his fellow men.  Where morality is not absolute, where it is not internalized, either anarchy will reign or else government will have to impose standards.  Thus, the growth of big government in the West has coincided with the decline of morality--it benefits us little to argue over which is cause and which effect--turning even the United States into an increasingly unfree society, groaning under the weight of government regulations.

All of which is by way of introduction to one of Clint Eastwood's very best movies : Hang 'em High.  The film is often misunderstood to be merely a revenge melodrama, little more than a Death Wish on horseback, but in reality it explores many of the fundamental issues surrounding the establishment of civilization.  And in the end, the real hero of the movie is not Eastwood's Jed Cooper, but Pat Hingle's Judge Fenton, who exerts a civilizing influence not merely over the Oklahoma Territory but also over Cooper.

The film opens with a series of powerfully Christian symbols, with Jed Cooper (note the initials) in the role of Christ.  Jed is leading his herd of new bought cattle (his flock) across a river.  A calf strays behind and gets mired mid-river. Jed dismounts and scoops up the calf, carrying him to shore.  Only if the calf were a lamb could the baptismal allegory be more obvious.

Jed no sooner gets to shore than a posse of men, led by Captain Wilson (Ed Begley), rides up and surrounds him.  They accuse him of stealing the cattle and murdering their rightful owner and, despite the fact that he can produce a bill of sale, lynch him.   But after they ride away, Marshal Dave Bliss rides up, cuts Jed down, and revives him.  He carts him off to Fort Grant with the promise/threat :

    We'll give you a fair trial, then maybe hang you all over again.

The Christian symbolism here includes Cooper (Jesus) getting in trouble with the authorities (the Captain) for leading the flock astray.  For which he is strung up (crucified), but still survives (is resurrected).

But the scene also draws upon the tensions we discussed earlier.  Cooper bears a quintessential symbol of capitalism, the bill of sale, but the posse refuses to recognize it, refuses in essence to be bound by the laws of a just civilization, and they revert, though the pretext upon which they undertake the hanging may obscure the fact, to a pre-societal lawlessness.  In acting as judge, jury, and executioner, Captain Wilson and his cohorts behave like savages.

Meanwhile, the Marshal takes Cooper to Fort Grant, where Territorial Judge Adam Fenton, who is based on the real life "Hanging Judge" Isaac Parker, presides over the only court for the entire Oklahoma and Indian Territory.  He metes out a firm and unwavering justice, but Cooper is able to prove that he was wrongly accused and is actually a former lawman from St. Louis.  Cooper threatens to hunt down and kill the members of the posse himself, but Judge Fenton convinces him to become a Marshal and to bring the men before him for due process and judgment, threatening that if Cooper takes matters into his own hands, he will hang for it.

Cooper proceeds to round up the various members of the posse (which includes such character actors as Alan Hale, Jr. and Bruce Dern), and tries to bring them in alive, with varying degrees of success.  But when he brings in two boys who helped Dern rustle some cattle and the Judge sentences them to hang, Cooper begins to question the severity of the justice Fenton is handing out.  On the day of the boys' hanging, Cooper visits the local whorehouse and is bushwhacked by Captain Wilson and a couple of his men.  Though badly shot up, he is nursed back to health by Rachel Warren (Inger Stevens), a local store owner who has become familiar to him through her insistence on examining each prisoner that the marshals bring in, and the two naturally begin to fall in love.  Rachel fends off his advances though, and eventually reveals that her husband was murdered and she raped by two men, men who she still hopes to see hung.  Cooper recognizes in her much of his own visceral desire for mere vengeance and can perceive how it is warping her ability to live a normal life.

There are several moments here where Cooper begins to speak but then pauses, again and then again, which by themselves should make people reconsider Eastwood's ability as an actor and which show the real thoughtfulness of the film.  Eastwood is one of the few actors whose silences are capable of conveying information to the viewer, but more than that, one of the few who is confident enough of his screen presence to remain silent.

The story plays out to its inevitable conclusion, with Cooper finally confronting the Captain, in a scene which draws once again on Christian symbolism, this time with Wilson in the role of the post-Crucifixion Judas.  This denouement, though necessary and fitting, is less interesting than the final set of scenes between Cooper and the Judge.  Cooper, particularly once he is in love with Rachel, wishes the Judge to temper his justice with mercy, wants emotions such as pity to prevail over the cold reason of absolute punishment.  The Judge however, whose personal anguish at the moments of execution the director (Ted Post) has been careful to show us, argues that his inflexibility, the sureness of punishment, is the only way to impose order on the Territory, to make it worthy of statehood, of, in effect, joining civilization.  As the original Judge Parker said :

    Liberty and life are precarious unless those in authority have sense and spirit enough to defend them
    under the law.

The terrible authority of the state (personified in the judge) must establish the rule of law before freedom can flourish.  And so, Jed rides out of town alone, his star (representing the Judge's rational and impersonal vision of Justice) pinned to his chest, quite conspicuously by-passing Rachel's store, having rejected the more personal and emotional type of revenge that she represents.

This is an easy enough film to enjoy just for the revenge-seeking storyline, but stop there and you are really cheating yourself.  Look a little deeper and then deeper still and you'll find one of the more intelligent films ever made.  It explores the issues that reside right at the core of our political system and of our civilization.  It does so with unusual insight and with a conservative sensibility which is all too rare in Hollywood.

(Reviewed:05-Aug-01)

Grade: (A+)