(Check out Part One and Part Two)
SCENE:
The West. Two cowboys, Bart and Biff, are sitting around a campfire…
BIFF: Well, we’ve amused ourselves quite a bit lighting our own farts, now let’s find some other way to entertain ourselves.
BART: Let’s tell the story of “Gunplay” Maxwell.
BIFF: OK, let’s see…”Gunplay” Maxwell is known as a Western outlaw, but he was actually born James Otis Bliss, the son of a respectable businessman in Massachusetts. I heard tell that when things got too hot for him in the West, Maxwell/Bliss would send his wife and daughter to live with his Bliss relatives in Massachusetts until things cooled down.
BART: But when she wasn’t in Massachusetts, his wife would be with him to help him out in his criminal pursuits.
BIFF: Now, some say that Maxwell was turned down for membership in Butch Cassidy’s gang…
“We have considered your application, Mr. Maxwell, and we’re sorry to say we have no positions available at present. We’ll keep your resume on file.”
BART: That ain’t the way I heard it. Way I heard it, Maxwell was in on some of Butch Cassidy’s gang’s jobs.
BIFF: When we’re looking at the career of “Gunplay” Maxwell, it looks a lot like that Japanese movie Rashomon.
BART: Never seen it.
BIFF: ‘Course you never seen it, it ain’t been made yet, but you’re supposed to pretend you’ve seen it, so you can look sophisticated.
BART: …says Mr. “Look at me lighting my own farts.”
BIFF: Anyways, the historiographical conflicts have yet to be resolved, but Maxwell was either an outlaw with Cassidy’s gang, or else he was acting just with his own gang, rustling cattle and stuff like that.
BART: And supposedly, one time the cops were out to arrest him, and he was going to turn himself in, but his wife said he was being a wimp so he got away and stayed on the run.
BIFF: And a lot of his jobs were supposedly planned with the help of a local postmaster.
BART: Ha ha, going postal.
BIFF: But the important part of the story takes place in Springville, Utah on May 28, 1898, when an alarm from the bank was linked to a store across the street. Now, the storekeeper hear the alarm go off, but at first he didn’t think anything of it, because there had been a lot of false alarms lately…
BART: But the fact that we’re sitting here talking about it now is kind of a tip-off that it wasn’t no false alarm this time…
BIFF: Yeah, it was the Maxwell gang trying to rob the bank, but the teller had the presence of mind to trigger the alarm.
BART: Yeah, so the townspeople formed a posse.
BIFF: And they killed Maxwell’s companion, but they took Maxwell alive, and he was convicted.
BART: So Maxwell got himself a lawyer and took his case to the highest court in the land.
BIFF: Judge Judy?
BART: No, dummy, the U. S. Supreme Court. Now, the Supremes had previously given a decision that said a trial by jury meant a trial by exactly 12 jurors. Yet Maxwell’s jury, in accordance with the Utah Constitution, had only eight members.
Eight is enough?
BIFF: Those Mormons, amirite?
BART: Sure, the Mormons agreed to put this idea of 8-person juries (with certain exceptions) in the Utah constitution, but it wasn’t strictly the Mormons’ idea. It was the idea of some non-Mormon lawyers who were members of the state constitutional convention, like C. C. Goodwin. In fact, Goodwin was very disparaging of the idea of trial by jury and openly fantasized about abolishing juries altogether.
BIFF: Is that the same C. C. Goodwin who ran the anti-Mormon Salt Lake Tribune? The guy who supported the federal prosecution of Mormon polygamists? Why would the delegates care about what he said? Wouldn’t they do the opposite of what Goodwin wanted?
BART: Danged if I know. When the state constitution was being written in 1895 there seems to have been kind of a truce between the Mormons and their erstwhile oppressors, and this Goodwin fella used to be a judge, so I guess they were willing to listen to his legal expertise…
BIFF: Earth to Mormons: Don’t take advice from your sworn enemies about whether to dilute your constitutional rights! But the U. S. Supremes said that a jury means 12 people, so I guess Maxwell won his case?
BART: No, actually, because even though the Supreme Court said a jury means 12 people, in Maxwell’s case the Supreme Court also said that the states don’t have to have trial by jury. So since Maxwell didn’t have the right to a trial by jury, it didn’t matter how many jurors he had, or even if he had any jurors at all.
BIFF: Well if that don’t beat all! So what did happen to Maxwell?
BART: He got together a bunch of local citizens, including the judge at his trial, who persuaded the parole board to release him. It helped that Maxwell assisted in stopping a jailbreak by other inmates.
BIFF: Do you have a link?
BART: Here.
BIFF: So, was Maxwell rehabilitated?
BART: I dunno, maybe you could say he was rehabilitated…right up until he picked a fight and got fatally shot. Some say he was planning another job at the time.
BIFF: That Rashomon thing again.
BART: But in the 1960s, the Supreme Court admitted that states have to provide jury trials, at least to those accused of serious crimes.
BIFF: So now we all have a right to a 12-person jury?
BART: No, because the Supremes also said around that time that a jury doesn’t need twelve people anymore. Maybe it can be as few as six.
BIFF: So they changed their mind about that, too? But the fewer jurors you have, the less of a cross-section of the community you’ve got.
BART: I think that’s the point.
Book Learnin’ that I Consulted
Erma Armstrong, “Aunt Ada & the Outlaws: The Story of C. L. Maxwell.” The Outlaw Trail Journal, Winter 1997.
Raoul Berger, “Trial by Jury:” Six or Twelve Jurors,” in Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard University Press, 1977, pp. 397-406.
“C.L. aka John Carter “Gunplay” Maxwell,” https://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=5459997.
Richard C. Courtner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: The University of Wisconsin Press, 1981.
“Gunplay Maxwell – Utah Gunfighter and Outlaw.” http://www.legendsofamerica.com/we-gunplaymaxwell.html
Official Report of the Proceedings and Debates of the Convention Assembled at Salt Lake City on the Fourth Day of March, 1895, to Adopt a Constitution for the State of Utah, Volume 1. Salt Lake City: Star Printing Company, 1898.
Charles S. Peterson and Brian Q. Cannon, The Awkward State of Utah: Coming of Age in the Nation, 1896-1945. Salt Lake City: University of Utah Press, 2015.
Michael Rutter, “Gunplay Maxwell, the Wannabe Gunman,” in Outlaw Tales of Utah: True Stories of the Beehive State’s Most Infamous Crooks, Culprits and Cutthtroats. Guilford, Conn: Twodot Press, 2011, pp. 156-165.
Jean Bickmore White, Charter for Statehood: The Story of Utah’s State Constitution. Salt Lake City: University of Utah Press, 1996.
El Firsto?
No reference to the story, BZZZZT!
That’s a hangin’, pardner
I had something real nice typed up , but then work called and i got distracted, and since I am gonna be lynched now anyway, I am not posting it!
But then I got high.
Go Afroman!
You have until sundown to gets outta town buster.
Burger’s concurrence in Williams v. Florida (the one permitting juries of 6 as well as allowing the notice-of-alibi rule) is comedy of the darkest kind:
The prosecutor upon receiving notice [of alibi] will, of course, investigate prospective alibi witnesses. If he finds them reliable and unimpeachable he will doubtless re-examine his entire case and this process would very likely lead to dismissal of the charges. In turn he might be obliged to determine why false charges were instituted and where the breakdown occurred in the examination of evidence that led to a charge.
It’s so divorced from reality that words fail.
I have to say, I really enjoyed the cowboy dialogue format. Two guns up!
I’ll second that. Definitely good for a chuckle. Especially when Bart provided a link.
agreed. I rate = 5million skinned buffalo out of 6million
Sun’s up guns up?
Happy “let’s all destroy or country and be Communists” Day!
OT: To those who recently recommended Dan Carlin’s Hardcore History to me: Thank you. I’ve been listening to his WWI series, which I’ve almost finished and have found the entire thing fascinating and moving. He does a remarkable job of really driving home how different this war was from everything that came before (and after?) and the horror that much of the battles were. I confess, I got a little drunk the other night while listening and playing games and broke down crying for a bit. And I hadn’t even gotten to the Battle of Passchendaele yet.
Also, I’ve learned that listening to history means you have no idea how to spell anything.
But it means you know how to pronounce everything.
That’s actually a really good point. There’s a pretty good chance I would say Passchendaele incorrectly, and Ypres is probably right out.
So now I can sound smart, but won’t look smart.
To quote Bob Packett on WWI:
It began stupid, it was fought stupid, and it ended stupid.
Once you finish the podcast, do yourself a favor and read “Now it Can Be Told”.
Thanks for the recommendation. Carlin definitely makes a pretty good case for taking a look at that book. It’s crazy how little attention the war gets in American education. The series has done a good job of showing a lot of the effects that have come out of the war, and it’s got to be one of the darker points in human history in terms of scale of destruction, but in the US we’re too worried about slavery and the Holocaust to spend much time on anything else.
History podcast? How did I not see this before? Right, well, see ya chumps.
he was going to turn himself in, but his wife said he was being a wimp so he got away and stayed on the run.
Dayum.
Dats a good woman.
#hasactuallywatchedRashomon
in fairness, I watched it before hipsterism was even extant or I knew what chic taste in movies was supposed to be.
Love these articles, and the general direction of glibertarianism. Nice to have a place where I don’t feel my superior intellect and brilliant unsolicited opining is constantly needed, heh.
Suggestion for a future article: a dialogue between different SC justices representing the different streams of Constitutional interpretation.
Talking about hookers and blow?
I always ruin my hipster cred by saying I like Ran better. Epic Kurosawa is best Kurosawa.
Hell, I’ll ruin it even further by saying that, as much as I like Rashomon, I’ll pick the relatively low-brow Seven Samurai over it any day of the week. Though really, you can’t go wrong with any Kurosawa-Mifune film — Mifune is tremendously expressive as an actor and always looks like he’s having a hell of a lot of fun.
as a Kurosawa devotee from long before it was cool…. i’ve always thought Rashomon was the movie most frequently cited by ‘intellectuals’ for its comments on the ‘unreliability of perception’ and the multiplicity of truth…. whereas Ran was more frequently-cited by weeny film-nerds for its cinematic composition, use of color, aesthetic qualities basically…. and Seven Samurai or Hidden Fortress are the most-cited when it comes to the technical aspects like ‘wide/medium/close shot’ framing/sequencing, various editing innovations (wipes, dissolves, fades), use of moving figures versus moving cameras, and so on.
i think the most important thing about Kurosawa films that most hipsters miss is how *entertaining* they all are. skip all the bullshit about his cinematic methods, and just examine the ‘effect’. He was a master storyteller. And i think it mainly came from his appreciation of silent films, and how he tried to tell stories without dialogue as much as possible.
I always liked Throne of Blood and Sanjuro myself. Been a long time since I watched them though, so I have no analysis as to why at this point. Might be time to revisit them.
Its sort of a hit/miss for many people. Its his “Noh” film. hyperstylized and ‘unrealistic’. basically an avante-garde theatre production of macbeth
Sanjuro/Yojimbo are just some badass western-meets-ronin films. I definitely prefer those (as well as his “noir-ish” moves like Stray Dog, High+Low, Drunken Angel) overall to the highbrow-literarti movies he made (e.g. the Idiot, The Lower Depths, Red Beard etc)
I never got around to Stray Dog. It got much worse reviews than a lot of his other movies and so I put it lower in the list of his movies to watch, until I forgot about it entirely. I’ll have to check it out.
BOOOOO!!!!!
Its freaking awesome.
Like Drunken Angel, its basically a critique of modern post-war japan and its increasing westernization and loss of ‘traditional japanese virtues’
But of course it tells this story by *blatantly stealing Howard Hawks/John Huston-esque* film style. Basically by being the same ‘problem’ its bemoaning. META, DUDE
But the plot is super-simple and awesome and imo inspired many other imitation movies. =
“Cop Loses Gun; Criminal Who Stole Gun Goes On Kill Spree. Cop Feels Shame. Vows to Get Criminal. Must Stop Being Good Cop and Descend to Level of Bad Guy Criminal In Order To Catch Him. While Pretending To Be Criminal Type, Cop Realizes Cops and Criminals Are Only Separated By Thin Veneer Of Morality. Deep Thoughts Are Had. Final Moment = “we’re not so different, you and i.”
It’s actually quite good. I DVRed it along with No Regrets For Our Youth when TCM ran its Kurosawa birthday salute in March 2016.
I also really like One Wonderful Sunday
Yeah, I remember reading somewhere that Kurosawa did an interview shortly after Seven Samurai where he was quoted pretty much calling out other Japanese directors for making boring movies that were “too Japanese”. I believe the specific movie he referenced was “The Flavor of Green Tea over Rice”.
huh. thats definitely possible.
in that period of the 1950s, he was actually dissed by many Japanese critics as being far too pandering to the West. And he didn’t actually have nearly as much success domestically as he got from Western audiences. He won all sorts of prizes (golden palm, academy award) for Rashomon in 1950, but most Japanese people thought the movie was pretentious/weird and didn’t get it. And his other films following that were also mostly based on Western literature/ideas.
Basically, Japanese people were suspicious that if he was so successful abroad, that he must be doing something to make the Japanese to look bad, or pimping out “japaneseness” for cheap giggles.
I prefer his earlier stuff. I will, however, say that I was too young the first time I watched Ikiru to appreciate it.
So you’re saying you like Rashomon before it was a thing?
I liked Rashomon before Meiji Japan was a thing, I’m so fucking old.
Hah!
Well, I read the story before I saw the movie, so I guess I manage to be more ‘accidentally hipster’ than you. Plus I’m a millennial on a technicality.
(*sees 4-Yorkshiremen one-upmanship beginning…. doubles down….)
I APPRECIATED THE CALLIGRAPHY BEFORE I EVEN READ THE BOOK
JAPAN IS MY SPIRIT ANIMAL!
YOU MEAN “KAMI” YOU WEABOO
In the year negative a billion, I drew the cave paintings before Japan even existed.
I DATED AMATERASU THE SUN GODDESS PRIOR TO CREATION OF THE MATERIAL WORLD
I think you can get an impression as to how labor-intensive that video production was… based on the fact that nothing else that guy made was more than 10 seconds long.
But its pretty great. i wondered how he was cleverly getting all those interjections of “sing-song words with jazz chords” until i realized, “oh, that’s actually what he does for a living”
More derp from the “paper of record”.
http://hotair.com/archives/2017/05/01/ny-times-communism-inspired-americans/
more remarkable than that one example is that the NYT has devoted an entire regular column to examining the importance of Marxism since the 1917 russian revolution
“Red Century”
https://www.nytimes.com/column/red-century/
strangely, none of the entries to date have mentioned anything about “Mass Murder”
It’s fitting that commies picked red as their color of choice, seeing as how their regimes are usually soaked in blood at some point.
And in spite of that the ideology is harder to kill than Dracula.
Commies engage in preemptive self defense: They kill you before you can kill them,
strangely, none of the entries to date have mentioned anything about “Mass Murder”
Much like none of the articles discussing the stagnant Seattle service economy mentions the $15 minimum wage.
Well, to be fair, that’s at least consistent with their historical reporting in regards to the Soviet Union.
Yeah I look forward to their Walter Duranty retrospective