The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1907-04-07
Mr.. Machen to Mr.. Braxtorl.S

Editor OF Tho Tines-Dlspatch:
sir,-With great Difference to MI.
A.. sCaperton 1,rnxton's well-rccognizel
ability ns a lawyer ana patriotism as
citizen, I cannot help thinking that
lie spoke hastily In expressing Ills OPP
position to the proposed writing Of tho
so-callcd "unwritten law" II l,o was
correctly quoted In recent interview
published in Tho dispatch.
Judge that his objections arc:
First That the proposed law !s d
wrong theory; second, that 1t Is d
step backward toward bnrbnrism; third,
that wc should lnve no hard and fast
rule for such cases, but each case
should be decided upon Its own facts.
The first two objections arc rather
too vague to admit OF reply. II It
Is meant that n man Is never Justified
in defending tho honor of his home, Mr..
Braxton will ind himself In very
small minority in Virginia. II It Is
meant that juries should not be pcr-
nitted to determine the sufllciency Of
the provocation, tho answer Is TINT
thoy may, under tho law as 1t stands,
consider tho sufIlclency OF the provo
cation for tho purpose Of reducing tho
degree OF tho crime. 1t Is difficult to
say why. they could not with equal
propriety consider the sufllcicncy OF
tho provocntion for tho purpose Of do
tcrminng whether or not any crime
has been committed. A moro decisive
answcr is that jurlcs invariably cxer-
else tho power which the statute pro-
poses to give them. Tho difference Ia
that the statute would enable them to
do Justice legally. whereas now they
nrc compelled to do Justice Illegally.
Mr.. BraXton will hardly contend that
Virginia jures cannot be trusted to
determine tho suficicncy OF the provo
cation in such cases
It Is ccrtianly not easy to under
stand how an effort to mako tho law
| accord with public opinion can posi-
bly, be considered MS n step toward
barbarlsm. 1t would seem that tho
present mode of administering a rudo
kind OF justicN in defiance of the law
is much moro barbaric custom.
AS to the third objection. Mr.. Brax-
ten has undoubtedly gotten tho matter
backwards. Ho says that he Is OPP
posed to having n hard and fast rulc
for such cases. Tho present law is
Just such q hard and fast rule. man
who pursues another man who is elop-
ing with the first mans wife and
| ~ NSHEo 1A!u hLlcT, Il sCOHSlOcTAOloY tlInG,
md kills him, Is guilty OF murder.
The object of tho statute is to give
the Jury an opportunity to consider
each case upon ita own facts, and
where they find the provocation sum
cient, as they undoubtedly would In
the case Just mentioned. they might
legally find verdict OF acquittal
which they would do in any event.
a recent editorial In tho New York
Sun, referring to tho proposed meas
IRE, says:
"At first blush this proposed enact
mont Of the "unwritten law" seems
supernuous In State where jurlcs
hrd no difficulty in ncquitting man.
killers in spite OF the written law
but perhaps II the "unwritten law
were put into cold typo between
shecpskin covers the occupation o!
emotional Jury lawyers would be gone
and juries would require exact anc
complete proof of the wrong which
provoked the defendant to murder"
Under present conditions the admin
istratlon OF criminal law Is suffering
from the subterfuges and absurd plea;
which are frequently put forward I,
justify acts which should be justifet
by law. There seems no way to rom
ody this difficulty except to give jurie
discretion in that class OF cases
IL any one can suggest q better one.
! think 1t is his duty to do so.
Respectfully,
LEWIS II. sa1ACHEN.
TX AleSnndria.1 Va. Slt4ssssr4