Order Without Law

US Marshal Dee Harkey at 92-years old

The western is the great drama of man in nature. The frontier reveals man’s true character, stripped of state and civilization, for better or worse.

Over the decades, Hollywood screenwriters have influenced our view of the old West. Current perceptions owe more to 1950s westerns than actual history. Watching those old movies, it seems there was a lynch mob in every town, murderous gangs constantly preying on helpless pioneers. Only the cavalry or lawman could impose order on frontier chaos.

As Ryan McMaken notes in his excellent Commie Cowboys, “Although John Locke may have been able to imagine a functioning society that existed before government, the Western film clearly cannot.”

Was the true old West a Hobbesian nightmare of violence? Did the strong oppress the weak on the prairie until the intervention of government? Or did Hollywood craft a statist myth?

According to U.S. Marshal Dee Harkey, the reality of the old West was order without law, society without state. It was anarchy in action.

Dee Harkey was ninety-two years-old in 1958. At his home in New Mexico, the former lawman gave an interview to Monk Lofton just two weeks before he passed away. Harkey set the record straight about the old West. He also expressed the unease he felt for his own role in transferring the responsibility of law from the individual to the state.

Born in Richland Springs, Texas, in 1866, Dee Harkey was orphaned by age three. Raised by an older brother, Dee worked as farmhand and cowboy. At sixteen, he was a deputy under his brother, Joe Harkey, sheriff of San Saba County. The first man Dee ever arrested was Deacon Jim Miller, the most prolific, psychopathic hitman of the old West. Four years later, Dee was married and farming in Bee County when a dispute with a neighbor, George Young, turned into a knife fight. Though never a big man (at the time of his death, he weighed less than a hundred pounds), Harkey apparently had no difficulty winning the fight to the death. In 1890, Harkey moved his family to Carlsbad, New Mexico and soon became a Deputy U. S. Marshal. His memoir, Mean As Hell, was published in 1948. At seventy-two, Harkey fathered a child with a young woman. The boy was given up for adoption and didn’t discover the identity of his birth parents until he was over forty-five.

“I have never contended that any of the good men of the old West were all good,” Harkey told Monk Lofton. “Nor that any of the bad ones were all bad. There were mean, vicious outlaws then, just as there are mean, vicious outlaws today… Mean as the worst of them were in that day and time, many of them made good friends—loyal, accommodating, and, to a certain extent, trustworthy. Most of them had no quarrel with me personally. It was just that law and order interfered with their way of doing things.”

On the subject of his duties, Harkey said, “Like most of the men of that day and time, I neither approved nor disapproved of law and order as it is interpreted today. I was more interested in taking care of Dee Harkey, of course, than in imposing my opinion as to what I thought good or bad for other people. I took the job of Deputy United Sates Marshal, not because I felt qualified to judge other people, but because the job paid a good salary. Naturally, I realized the reason it paid a good salary was because it was hard and dangerous. In that day and time, the job of an officer of the law was not to establish either the innocence or guilt of the men for whom the warrants were issued, but to deliver those men safely to the court for a fair and unbiased trial. My only agreement was to serve the warrants…”

Harkey then explained what in those bygone days were commonly termed the Laws of the West. On the frontier, beyond the reach of the state, Westerners lived by unwritten laws in their dealings with each other.

Lofton said, “In complete disregard for the laws of the nation, each man more or less made his own laws; or should we say, his own code of behavior?”

“If he wanted to live to be a very old man, he did,” Harkey told him. “In those days, a man was used to his very life depending on his code of behavior. Before law and order came to the old West, justice among men was something that each individual tried to live by within himself lest he become a hunted man—not protected by the law—but most likely to be killed by it. The penalty for wronging a man in those days was usually having to face him with his pistol at his side, and regardless of how fast a man might be with his gun, or how good a shot he might be, it could easily be assumed that the other was just as fast and just as good as the offender. If anything, the man who wronged another in those days was taking a bigger chance in being punished for his crime. A man in his right mind then didn’t dare wrong another purposely; and if he figured he might have wronged him, accidently, he was quick to make amends.”

Dee Harkey in 1932

Harkey continued, “Each person pretty much enforced the laws as he understood them. If the strong imposed his gun on the weak, or became ruthless in his dealings with his fellow man, there was always the posse.”

Were the majority of the posses which lynched accused men justified in their actions?

“Regardless of how men are tried, except by God alone, there are possibilities of mistakes. Those people who had to dish out punishment themselves instead of having someone dish it out for them, as is done today after sentence is pronounced, were usually pretty sure of the guilt before the punishment. Naturally, the formed posses were never considered a means to an end. They were just about as unpopular with the law as the lawless.”

Contrast Harkey’s remarks with the Henry Fonda film The Ox-Box Incident from 1943. Gary North refers to the didactic movie as a “liberal propaganda film” disguised as a western.

Lofton asked Harkey if he preferred the law of the gun to the law of the court.

“It was just that in one case,” Harkey explained, “the state or federal government, as the case might be, enforces the laws, and in the case of the West, each man felt responsible to see that no law was broken against him. In the event of damage caused a man by the breaking of a law by another, each man felt he must take it upon himself to either punish or kill the man who wronged him. In those days, the wrong was considered first the reasonability of the man to whom it was directed; and when I took the job as Deputy United States Marshal, it became my job to assist in the transference of the law from the individual to the Territory, and later to the state, of New Mexico. I wasn’t sure which was the better method then, and I’m not sure now.”

Harkey wore a badge, but his sense of justice was still of the frontier variety. A number of times he served warrants on men who’d killed for what Harkey believed were justifiable reasons, men whose only mistake was enforcing the old Laws of the West. Harkey admitted he himself would’ve drawn a gun for far less cause than most of these men.

“In many cases where I felt justice had already been properly executed, because the law had been broken in its execution, it became my job to bring dangerous men in for trial. Whereas many of the crimes had been founded on justifiable circumstances, I knew, just as many of the lawbreakers knew at that time, that the courts were usually founded on the hard facts set forth in a law book. But, as I said, my job was to serve the warrant, not to try the culprit.”

Harkey’s arrest methods show how far America has fallen. Instead of kicking in doors at midnight on no-knock warrants, Harkey “always told a man honestly that there was nothing personal about my serving a warrant. Before making an arrest I told him the simple requirements of my job, often on a friendly and impersonal basis. Many of them, even though I knew all about the crimes they committed, I considered my best friends; and often the mere fact that I had a warrant for their arrest made very little difference in our friendly relations. Because I had a warrant for their arrest, however, I never doubted that many of my best friends would kill me if they got the chance. It was not a personal thing with most of them. It was just that they knew me too well, or they knew me not well enough.

Harkey explained, “It was not that they wanted to kill me out of malice or anything like that; it was just that they identified me with the laws of the United States government at a time when they were still trying to live by the laws of the six-shooters. It was the law, not the man whose job it was to bring them to it, that they were fighting.”

As Lofton spoke with Harkey that day in November 1958, the writer got the impression the marshal’s heart still sided with the old ways. So he asked him, “Which do you regard with the most respect, the laws of the old West, or the laws of the written documents?”

“I knew that was coming,” Harkey said and smiled. “Usually, people of strong, friendly bonds are more or less of the same will and opinion. Most of us who are living today were not U.S. Marshals seventy years ago in the New Mexico Territory. The majority at that time who are still living did everything they could to keep the Territory free of laws and regulations. Naturally, they wanted as little inference as possible with their early way of life. As for myself, however, I feel that I am one who did a great deal to establish the laws of the written document, as you put it, in Southern New Mexico. I just couldn’t let myself think now that all the chances I took to bring law and order to Eddy County might have been wasted.”

The men of the old West had the courage to forge their own code. They remained Harkey’s kind of people. Lofton asked the marshal if he ever felt like a traitor. “Do you still admire them,” Lofton asked, “for trying to maintain a way of American frontier life? Or do you feel that you justified them as the last opposition to civilization and a gentler way of peaceful living?”

Harkey sat thinking in silence. Then he said, “I’m not sure. Old Mrs. George Larimore was ninety-eight years-old when she lay dying a few years ago, at which time she sent for me to come to see her just before she died. Perhaps no stronger bond of friendship was there in the old West than that shared by the Larimores and the Harkeys. Both families consisted of the law and the lawless.”

Harkey spoke of the conversation at the woman’s deathbed. “Dee, she said to me, I’ve lived a long time. I’m ninety-eight years-old, and now I have to die. I swear to you, she said, I believe laws were better when they were made by each man by the use of his own gun than they are today; and I believe when I was a young girl, people were more law-abidin’ than they are today.”

Dee Harkey in 1949, eighty-three years-old

Dee paused, then continued, “Knowing as well she did Dee Harkey, the young man of the old West, together with Dee Harkey, the United States Deputy Marshal, I have often wondered which one of those two characters she wanted to see when she knew she was dying. Was it the serious, hard-working Dee Harkey who helped bring preset-day law and order to Carlsbad? Or was it that young, hellish Dee Harkey of the old West? You were always an honest-to-goodness, hell-roarin’ Westerner, she said to me kindly. And I couldn’t tell if she actually meant to criticize or to acknowledge my sincerity in trying to do a hard, dangerous job to the best of my ability, for which she felt there was little reward due me.”

Lofton suggested the old woman had meant to compliment him for making her town a better place.

“Oh, no,” he said and smiled again. “You didn’t know Mrs. George Larimore. For her there was never a better place to live, nor more of it, than in the New Mexico Territory. She wanted law and order, I am sure of that, but she thought its only existence was in the way parents teach their children to maintain it.

“Give ‘em a gun, she used to say. Teach ‘em young how to use it, and the good in the most of ‘em will take care of the bad in the few. Then another time, she said to me, when the Law starts givin’ out guns, the lawless are goin’ to come a lot nearer gettin’ ‘em than the law abidin’.”

Reprinted with permission from Max McNabb.