The Washington herald., 1907-07-17
A southerner on tho Unwritten Law.


! A sensible and temperate view of the
/ so-called "unwritten law" is taken by
/ Southern lawyer. r w. Undertake IT.,
/ of Wake Forest, n. c., in an address be-
! fore the bar association of his State. He
/ finds that the unwritten law has its eX-
! istence in public sentiment, rather than
! in recognition by the courts. Judges may
! decry 1t. but jurles are influenced BY
/ it. and there are few cases in which it
! has been invoked where the slayer OF
another who violated marital rights or
/ the sanctlty of the home has been con-
| victed. Nevertheless, the law does not
/ consider the unwritten law a Justifica-
| ton Of homicide. a careful examination
| into the authorities" says Mr.. Timber
/ lake, has failed TO disclose any modern
! case from which the inference could be
drawn that the principle of the unwritten
/ law can be made a legal defense 20 homi-
eide At the most. it could only be
| taken as an extenuatlng circumstance.
reducing the act to a lesser degree Of
| crime"
AS 20 the question whether the unwrit-
ten law is justified on grounds of pub
lie policy, Mr.. Undertake unhesitatingly
| answers No" One of its greatest dan
gers from the point of view of public
policy is that the victim of the outraged
slayer may have been guiItless of the
offense for which he has been slain" In
such a case, says Mr.. Undertake, the
unwritten law hangs on a slender
thread, indeed" The rule of evidence
by which testimony tending 10 disclose
the innocence of the victim OF the un-
written law is excluded he regards as
Ubiquitous. One of the most vicious re-
suits Of the unwritten law, in Mr.. Tim
berlake's mind. is that it
Alascs its excctioner the sole tribunal to Judge Of
the guilt or innocence Of him who is auaigned under
il. By is terms judge and jury become one and the
same. the presumption Of innocence is discarded.
and evidence Of guilt only is admitted Here is a
court Of extraordinary powers indeed one.man
tribunal having original, exclusive and final srsdc
ton and whose only presumption Is that the pris-
oner az its bar is guilty. The person supposed TO
have committed breach Of the unvrtten law is
not allowed the opportunity to introduce evidence Of
Lis innocence; 10 is not even necessary 10 establish
lis guilt beyond reasonable doubt The only rcqui-
tie sentence
Mr.. Undertake offers the suggestion.
though without openly approving il, that
! il might be well for legislators 10 take
into consideration the question whether
the present legal remedies against the
cncroachment upon family purity are pro-
p0rtionate 10 the en0rmi;y Of the offense."
Prescribing the death penalty for invad-
ing the sanctity Of the home. lie thinks.
might 80 far toward removing the cause
for the operation Of the unwritten law.
But with the unwritten law itself, Mr..
Timberlake would make no compromise.
"Uusustained by authority and I'M
sanctioned by public policy. It can find
no legal justification in a well preserved
and perfectly organized community" Il
IS refreshing 10 hear the voice OF a
Southern lawyer speaking out so clearly
on a subject rs 20 which there is a vast
deal Of confused thinking and foolish
sentimcntality among ali classes.