The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1907-05-02
Ennetlnr the .rnuritten Law. ,,

Lewis II. Machep. Of Alexandria. Va,
a member Of the Virginia State senate.
advocates. in the current number Of the
Independent the enactment Of the so
called unwritten law into the statutory
code in order that juries may acquit.
without violating their Oaths, persons ac-
Cused of homicide committed in revenge
for a wrong upon the person Of a woman.
Mr.. Machen assumes that the common
judgment of mankind fully justifies hOmi-
eide committed when the provocation is
the invasion of marital rights or an at
tack upon the virtue Of the innocent: ="
that juries will not convict for murder
done under such a provocation, but will
ignore the law and the judges charge
and the sanctity of their own oaths: and
that. because Of this. reverence for the
jury system is diminished and "the whole
administration Of criminal law falls under
suspicion, if not reproach." Mr. Machen
says:
1t is perfectly Wen understood throughout the
civilized world that where homicide is committed
under the proyocation of an attack upon the sancty
Of the home there is no possibility Of any consider
able punishment. Yet comparatively few homicidss
result from such causes In cases in which they do
result officers Of tie law frequently reluctant 10
prosecute; witnesses fail to remember or deliberately
missate facts; medical experts testify that the
eused vas the victim q emotional insanity which
disappeared as soon as the cause vas removed. and
jures ignore the painest instructions q the courts.
The law suffers by being ignored trampled upon,
but the cause Of morality is not advanced.
rs it not time that lawmakers and Judges were
recognizing the fact that in such cases Huie5 viii
invariably consider the sufciency Of the proroca-
ton and if, in their Judgment, the proEocation is
sufficient they viii find yeriicts Of acQuittal: Would
IL not be wise therefore 10 give the jury the right
10 determine the adequacy Ct the progocationt II
is a right which they DO not hesitate 10 exercise.
Would anything be lost to the cause Of order by
concsding this right TO them as a matter Of law
Mr.. Machen therefore proposes a statute
authorizing the jury 10 acquit where
provocation is deemed sufficient TO justify
a crime committed in retaliation for a
wrong upon the person Of q woman. He
points out that several States have taken
steps in this direction, one of them,
Texas, having made the killing of another
by an aggrieved husband, under certain
circumstances, q justifiable homicide To
the objection most frequently offered to
such a statute as he proposes. that ''men
might be encouraged by such a law to
kill persons upon slight suspicion" Mr.
Machen replies that ''the statute sug-
gested would be restricted in its appli-
cation to cases in which the provocation
shall have been proven 10 be real Under
such a statute no man would be permitted
to act rashly upon mere suspicion OF
hearsay and claim justification. Such a
claim is made in Just such cases under
the practice now prevailing" Mr.. Machen
points out that testimony showing provo
cation can now be admitted only by in
direction or subteTfuge, and when intro
duced cannot be rebutted by the State;
whereas, if the provocation were a mat
ter which might be lawfully considered.
the State would be permitted to show
that in fact no such provocation existed. 80
1t is not to be denied that Mr. Machen
has made out d very good case for some
modification of the practice OF the courts
in the trial Of persons for crimes invoiv-
ing the protection of women. We should
regard it. however. a more serious OBJ
lection than any be has considered and
answered that such a statute as he pro
poses would be a standing invitation to
men aggrieved by crimes against women
TO constitute themselves judge, jury, and
executioner. not only upon slight sus-
picion. but on all occasions. In effect it
is a statutory declaration that under
given circumstances. not necessarily in
defense against an nvArf act murder ms 4,
De properly committed, or, to use Mr..
Aachen's own language. that certain
things which the law brands as crimes
may be done with impunity" We are
forced to disagree with the view that
such a declaration would make for public
order and the good of society. The IN
written law, as We see it in practice, is
scarcely more than a return to primitive
instincts and the customs Of savagery.
L Is based on code Of private ven
geance that involves the surrender OF
every principle upon which civilized So
eiety is based. If we can no longer rely
on the State for protection against and
redress of public wrongs. we might as
well confess civil governments total
failure. What We ought to do is not to
write the 'unwritten law" into our
statute books, but 10 Danish it from
thought and action. There may be coed
reasons why a jury should be permitted
10 pass upon the provocation Of a crime.
but there are no reasons why a com
munity should be brought up to trust in