by Les Weil
Winder had a Winchester with him, but he left it against the tie rail and came in, Gabe behind him, and looked at Davies like a stranger, and ordered a whisky.
Canby offered Gabe a drink too, just to see him refuse it. He looked at Canby and grinned to show he meant to be pleasant and shook his head. Then he stood looking slowly around as if he'd never been in the place before, though he'd followed Winder in, almost every day for years.
Winder winked at Canby. "Gabe don't care nothin' for drinkin' or smokin' or women, do you, Gabe?"
Gabe grinned and shook his head again, and then looked down at the floor like he was going to blush. Winder cackled.
"He's a good boy, Gabe is," he said.
This joke was as old as Canby's and Gil's about the woman in the picture.
Winder drank one down, put his glass out to be filled again, and looked at Davies. He was a short, stringy, blond man, with a freckled face with no beard or mustache but always a short, reddish stubble. He had pale blue eyes with a constant hostile stare, as if he was trying to pick a fight even when he laughed.
"They're takin' their time, ain't they?" he said. "They might as well," Davies said.
"Yeh?" Winder demanded.
"They haven't much to go on yet," Davies told him. "They got enough, from what I heard."
"Maybe, but not enough to know what to do."
"How do you mean?"
"Well, for one thing they don't know who did it."
"That's what we aim to find out, ain't it?"
"You can't tell who it might be."
"What the hell does that matter? I'd string any sonof-a-bitchin' rustler like that." He slapped the bar. "If he was my own brother, I would," he said furiously. Gabe made a little noise like he was clearing his throat.
"You're getting Gabe stirred up," Canby said.
"Yes, sub, if he was mah own brothah," Gabe said in his high voice. He was watching Davies, and swinging his hands back and forth on the ends of the long arms, close to his legs. We all knew there were two things made Gabe angry, seeing Winder angry, and being teased about niggers. Winder could handle him about getting mad himself, which was a good thing, he was mad so much; but Gabe was from Mississippi, and the worst about niggers I ever knew. He wouldn't eat where they'd eaten, sleep where they'd slept, or be seen talking to one. That seemed to be the one idea he'd kept from his earlier days, and it had grown on him.
"Well, there's another thing," Davies said.
"What's that?" Winder wanted to know.
"What's that?" Gabe asked too.
"Shut up, Gabe," Winder told him. "This ain't none of your affair. Go sit down."
Gabe looked at him like he didn't understand.
"Go on, sit down." Winder waved at the chairs along the back wall.
Gabe shuffled back to them and sat down, leaning on his knees and looking at the floor between his feet, so all you could see was the swell of his big shoulders, like the shoulders of a walrus, and the top of his head with the hair matted and straw in it, and those tremendous, thick paws hanging limp between his knees. He made a strong smell of horses and manure in the room, even through the stale beer odor.
"This sorta thing's gotta stop," Winder said, "no matter who's doin' it."
"It has," Davies agreed. "But we don't know how many of them there are; or which way they went, either. There's no use going off half-cocked."
"What the hell way would they go?" Winder asked him. "Out the south end by the draw, wouldn't they? There ain't no other way. They wouldn't head right back up this way, would they, with the whole place lyin' for them? You're damn shootin' they wouldn't."
"No," Davies said. He hadn't finished his drink; was just sipping it, but he filled the glass again and asked Winder, "Have one with me?"
"I don't mind," Winder said.
Canby filled Winder's glass again, and then Gil's. He held the bottle at me, but I shook my head.
"We might as well sit down," Davies said. "They're waiting on Bartlett anyway." He included Gil and me in the invitation. I didn't like it, but I didn't see how to get out of it. We sat down at the table where we'd been playing cards. Canby had that want-to-grin look in his eyes.
Winder pushed his hat back. "All the more reason to get going," he said.
"No particular hurry, though. If they're from around here, they aren't going far. If they aren't, they're going , long ways, too long for a few hours to matter when they've already got a big start."
"The sooner we get started, the sooner we get them."
"It looks that way to me, too," Gil said.
I tried to kick him under the table. I had a feeling Davies was working most on us anyway. He knew better than to think he could reach Winder.
"And how do you know they've got a start?" Winder asked.
"That's what young Greene said."
"Oh, him."
"He was tangled, but if he had anything straight it was the time. He figured Kinkaid must have been killed about noon."
"Well?"
"It's four-thirty now. Say they have a four-hour start. You aren't going to ride your head off to pick that up, are you?"
"Maybe not," Winder admitted.
"No," Davies said. "It's a long job at best, and stern chase. And it's more than five hundred miles to the first border that will do them any good. Part of that will be a tracking job too. The same way if they're heading for a hide-out to let things cool. It'll be dark in a couple of hours; three anyway. We won't even get down to the draw in that time."
"It's that much of a start if we get there tonight," Winder said.
"Yes, but there's no hurry. We can take our time, and form this posse right."
"Who the hell said anything about a posse?" Winder flared.
"He did," Gil put in; "but it didn't seem to go down so good."
"Why the hell would it?"
"Risley's here," Davies said.
"Risley's been here all summer," Winder said. "It didn't stop Kinkaid gettin' killed, did it?"
"One man can't be every place," I had to chip in. "This is a big valley."
Gil grinned at me to say now who needed a kick.
"He could be a hell of a lot more places than Risley is," Winder told me, staring across at me so I wanted to get up and let him have one.
"Risley's a good man," Davies said, "and a good sheriff."
"You 'mind me of Tyler and the preacher. What have they got us, your good men? A thousand head of cattle gone and a man killed, that's what they got us. We gotta do this ourselves. One good fast job, without no fiddlin' with legal papers, and that's all there'll be to it."
Davies had his hands out on the table in front of him, knobby fingers extended and fingertips together, and was looking at them. He didn't answer.
"It's like those damn, thievin' railroads," Winder said, staring around at all three of us to dare us to disagree. "They got the law with them; they're a legal business, they are. They killed off men, didn't they? You damn shootin' they did; one for every tie their son-of-a-bitchin' rails is laid on. And they robbed men of honest to God men's jobs from Saint Looey to Frisco, didn't they? And for what? For a lot of plush-bottomed, soft-handed bastards, who couldn't even drive their own wagons, to ride across the country and steal everything they could lay their hands on in Californy the same way they been doin' in the East for a hundred years. That's what for. And they got the law with them, ain't they? Well, it's men like us shoulda taken the law in their own hands right then. By God, I hate the stink of an Injun, but an Injun smells sweet comparin' to a railroad man. If we'd wanted to keep this country for decent people, we'da helped the Injuns bust up the railroad, yes, by God, we woulda. And that's the same law you're tryin' to hold us up for, ain't it -the kind of law that'll give a murderer plenty of time to get away and cover up, and then help him find his excuses by the book. You and your posses and waitin'. I say get goin' before we're cooled off, and the lily liver that's in half these new dudes gets time to pisen 'em again, so we gotta just
set back and listen to Judge Tyler spout his law and order crap. Jesus, it makes me sick."
He spit aside on the floor, and then glared at Davies.
That hatred of the railroad was Winder's only original notion, and when he got mad that always came in some way. Everything else was what he'd heard somebody, or most everybody, say, only he always got angry enough to make it sound like a conviction. His trouble was that he was a one-love man, and stagecoaching was his one love. Guard and driver, he'd been in it from the start with Wells Fargo on the Santa Fe, but it had such a short life he'd outlasted it, and by now, 1885, Lincoln dead and Grant out, the railroads had everything but these little sidelines, like Winder's. The driving was still tough enough, but the pay was poor as a puncher's and the driver was no hero any more.
Winder took it ersonally.
Davies knew how he was, and let him cool. Then he said, without looking up, "Legal action's not always just, that's true."
"You're damn shootin' it ain't."
"What would you say real justice was, Bill?"
Winder got cautious. "Whadya mean?" he asked.
"I mean, if you had to say what justice was, how would you put it?"
That wouldn't have been easy for anyone. It made Winder wild. He couldn't stand getting reined down logical.
"It sure as hell ain't lettin' things go till any sneakin' cattle thief can shoot a man down and only get a laugh out of it. It ain't that, anyway," he defended.
"No, it certainly isn't that," Davies agreed.
"It's seein' that everybody gets what's comin' to him, that's what it is," Winder said.
Davies thought that over. "Yes," he said, "that's about it."
"You're damn shootin' it is."
"But according to whom?" Davies asked him.
"Whadya mean, `according to whom'?" Winder wanted to know, saying "whom" like it tasted bad.
"I mean, who decides what everybody's got coming to him?"
Winder looked at us, daring us to grin. "We do," he said belligerently.
"Who are we?"
"Who the hell would we be? The rest of us. The straight ones."
Gabe was standing up and looking at us again, with his hands working. Winder saw him.
"Sit down, you big ape," he yelled at him. "I told you once this is none of your business." Gabe sat down, but kept watching us, looking worried. Winder felt better. It pleased him to see Gabe mind.
Davies said, "Yes, I guess you're right. It's the rest of us who decide."
"It couldn't be any other way," Winder boasted.
"No; no, it couldn't. Though men have tried."
"They couldn't get away with it."
"Not in the long run," Davies agreed. "Not if you make the 'we' big enough, so it takes in everybody."
"Sure it does."
"But how do we decide?" Davies asked, as if it were troubling him.
"Decide what?"
"Who's got what coming to him?"
"How does anybody? You just know, don't you? You know murder's not right and you know rustlin's not right, don't you?"
"Yes, but what makes us feel so sure they aren't?"
"God, what a fool question," Winder said. "They're against the law. Anybody . . ." Then he saw where he was, and his neck began to get red. But Davies wasn't being just smart. He let his clincher go and made his point, mostly for Gil and me, that it took a bigger "we" than the valley to justify a hanging, and that the only way to get it was to let the law decide.
"If we go out and hang two or three men," he finished, "without doing what the law says, forming a posse and bringing the men in for trial, then by the same law, we're not officers of justice, but due to be hanged ourselves."
"And who'll hang us?" Winder wanted to know.
"Maybe nobody," Davies admitted. "Then our crime's worse than a murderer's. His act puts him outside the aw, but keeps the law intact. Ours would weaken the law."
"That's cuttin' it pretty thin," Gil said.
He'd let himself in. Davies turned to him. "It sounds like it at first," he said earnestly, "but think it over and it isn't." And he went on to prove how the greater "we," is he called it, could absorb a few unpunished criminals, but not unpunished extra-legal justice. 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 o 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 knew they were wrong; that their secrecy proved it, and their sense of guilt afterward.
"Did you ever know a lyncher who wasn't afraid to talk about it afterward?" he asked us.
"How would we know?" Winder asked him. "We never knew a lyncher. We'll tell you later," he added, grinning.
I said that with the law it was still men who had to decide, and sometimes no better men than the rest of us.
"That's true," Davies said, "but the poorest of them is better fitted to judge than we are. He has three big things in his favor: time, precedent, and the consent of the majority that he shall act for them."
I thought about it. "I can see how the time would count," I said.
He explained that precedent and the consent of the majority lessened personal responsibility and gave a man more than his own opinion to go on, so he wasn't so likely to panic or be swung by a mob feeling. He got warmed up like a preacher with real faith on his favorite sermon, and at the end was pleading with us again, not to go as a lynching party, not to weaken the conscience of the nation, not to commit this sin against society.
"Sin against society," Winder said, imitating a woman with a lisp.
"Just that," Davies said passionately, and suddenly pointed his finger at Winder so Winder's wry, angry grin faded into a watchful look. Davies' white, indoor face was hard with his intensity, his young-looking eyes shining, his big mouth drawn down to be firm, but trembling a little, as if he were going to cry. You can think what you want later, but you have to listen to a man like that.
"Yes," he repeated, "a sin against society. Law is more than the words that put it on the books; law is more than any decisions that may be made from it; law is nore than the particular code of it stated at any one tme or in any one place or nation; more than any man, awyer or judge, sheriff or jailer, who may represent it, true law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society. It has taken thousands of years to develop, and it is the greatest, the most distinguishing quality which has evolved with mankind. None of man's temples, none of his religions, none of his weapons, his tools, his arts, his sciences, nothing else he has grown to, is so great a thing as his justice, his sense of justice. The true law is something in itself; it is the spirit of the moral nature of man; it is an existence apart, like God, and as worthy of worship as God. If we can touch God at all, where do we touch him save in the conscience? And what is the conscience of any man save his little fragment of the conscience of all men in all time?"
He stopped, not as if he had finished, but as if he suddenly saw he was wasting something precious.
"Sin against society," Winder repeated the same way, and got up.
Gil got up too
. "That may be all true," he said, "but it don't make any difference now."
"No," Winder said, "we're in it now."
Gil asked, "Why didn't you tell them all this out there?"
"Yeah," Winder said.
"I tried to," Davies said, "and Osgood tried. They wouldn't listen. You know that."
"No," Gil said. "Then why tell us?" He included me. "We're just a couple of the boys. We don't count."
Davies said, "Sometimes two or three men will listen."
"Well," Gil said, "we've listened. What can we do?"
Winder grinned like he'd won the argument by a neat point, and he and Gil went back to the bar. Davies sat staring at the table, with his two hands lying quiet on top of it. Outside we could hear the men beginning to come back, the hoofs and harness and low talk. Finally he turned his head slowly and looked at me. His mouth had a crooked smile that made me sorry for him.
"Why take it so hard?" I asked him. "You did all you could."
He shook his head. "I failed," he said. "I got talking my ideas. It's my greatest failing."
"They had sense," I said.
But I wasn't sure of this myself. I'm slow with a new idea, and want to think it over alone, where I'm sure it's the idea and not the man that's getting me. And there's another thing I've always noticed, that arguments sound a lot different indoors and outdoors. There's a kind of insanity that comes from being between walls and under a roof. You're too cooped up, and don't get a chance to test ideas against the real size of things. That's true about day and night too; night's like a room; it makes the little things in your head too important. A man's not clearheaded at night. Some of what Davies had said I'd thought about before, but the idea I thought was the main one with him, about law expressing the conscience of society, and the individual conscience springing from that mass sense of right and wrong, was a new one to me, and needed work. It went so far and took in so much. Only I could see how, believing that, he could feel strongly about law, like some men do about religion.
When he didn't say anything, I said, "Only it seems to me sometimes you have to change the laws, and sometimes the men who represent them."