New-York tribune., 1907-05-19
THE "UNWRITTEN LAW. y
4 Suggestion That 1t BE Node
Statutory Lac.
BY Lewis III. Machen-
State Senator OF Virginia.

Strictly speaking there is such thing IN erin.
inal Jurisprudence as unwritten law. What is So
called is mere violation of laW-the finding OF ver
diets of acquittal which the law does not sustain
Every possible point involved in criminal ,-,.,
has been written down in text books and ,Ia,,ss
and become fixed, except changed bv statue
This body of law is simple and as clearI,, 5os
as any with which the courts have TO deal n -
be easily applied to the facts of any n,rttsay may
case. Yet in practice il is found that in = ulr
class of cases iuries persistentIy rsf,s d certain
the law as expounded TO them by the courts pS
lie opinion approves of such verdcts and go uO-
judges commend the Violation 81 sSSIne1iIles
charges The result is tacit I15ars, 9a tnelr own
certain things which the law brands as cr:zs 15a Slas
be done with impUnity. This crystallzatio1 - y
lie opinion in custom is what is known as The M
Some contend that the principles irun1vaa l. 49,.
custom are correct and should be enforced Otbarss
hold that these principles are incorrect and should
that these principles are correct, but think Tbsy
the instructions Of the courts waich they have
sworn to obey. -'O
h since the law in order to protect society must
that the law should be kept right But the sta1S
edge extends and public sentiment becomes more
humane and enlightened A hundred years aeo
in England The methods OF punishment too wars
bTgtaIl-drawing I-5 guarterng amputation, burninss
ana Drandlnss Offences which then punis6-
slight punishment or none It bas bssH bsD1t9S 9 o5
that excessive punishments destroy themseives
through the REFUSAL OF jures TO convict
Is there any doubt that the common judgment ~
men fully justiies homicide. committed when tSs
provocaton is the invasion of marital rights or an
attack upon the virtue of the innocent? and II
public sentiment is against the law as ii stands
why should not the law be changed? VIII not ths
whole body on the criminal laws be injuriously af
fected BY the attempt TO maintain cadaver in
criminal JuriSPrudenee? Is any good accomplished
letter. " p'' ''-e ''''0 ''iS dead
Is it time that lawmakers and judges wer,
recosnizing the fact that in certain cases juries
will invariably consider the suffiCency OF the pro
HocetttDA ana u. III tISI JuIsIhent tle provocaton
Would il not be wise, therefore, 70 give the turv
cation? II is a right which they DO not hastses
70 exercise. Would anything be lost TO the causs
ter of law?
Such a statute might be drawn thus: In an
battery. assault with intent kill or homicide in
~iGT @ II Is proven i that the person upon whom such
been guilty OF wrong upon the person Of the wife
mother, sister o. daughter of the accused the Jury
shall be the judges of whether such provocatio1
was sufficient 10 justify such assault, and may II
auitta 9Gfa assault was SO Justified find verdict Of ae
There have been several attempts TO modify BY
statute the str1ctness Of the common law in such
cases Delaware has reduced the killing. by an
aggrieved husband. of one found in fagrante de-
!lcto IIoIh : 1eIony Whlcn II was az common law.
TO a Inisd eIneanor- laws Of Delaware. 1898 Chap
- !StiIa9-e- lIeNS3S FeIlal code. Section 6l2)
And Utah has extended this principle 70 cases
the wife. mother, sister or daughter or other fa-
male relative or dependent (Revised Statutes OF
statute is broad in its terms though in practice
it IS probable that juries restrict its application
none Of these statutes is the jury given the right
TO Judge OF the sUfiCienCy Of the prOvOcati0D A
hard and fast rule is established for all cases In
deed. the Supreme Court Of Texas set aside a con-
viction in case where a husband had been given
three years in the penitentiary for homicide
which the statute declared justiabIe State AGAINST
Price, Is Tex. App. 474; 81 Am Rep 322) In lIarv-
land by statute, juries in criminal cases are made
the judges OF the law as well as OF the facts YET
they 10 judge the law from the statutes and
decisions. as courts DO, and bound by their
paths 10 enforce the law as they find it. Therefore
JurleS in Maryland can no more enforce the So
called unwritten law without violating their oaths
than can turieS Of other states All of Jhess
statutes are OF long standing. and seem 10 work
We'll IN the states which have adopted them
The Independent.