Unwritten Law cases weren't always a total moral failure
A Linn County case with a strong element of self-defense, and a Malheur County child-abuse travesty that ended with a shotgun blast, were called Unwritten Law triumphs in the newspapers — but there were differences.
By Finn J.D. John — September 27, 2015
By 1908, most Oregonians’ views on the Unwritten Law were hardening into suspicious disapproval.
This was a very new attitude, though. Just one year before, citizens had burst into spontaneous applause in the courtroom when Orlando Murray was acquitted of murdering his sister’s ex-boyfriend. Since that time, though, suspicions had been growing that things were getting out of hand. The newspapers found the trend rather frightening, and didn’t hesitate to say so. Defendants were still getting acquitted because of the Unwritten Law — but it was getting noticeably harder for cases to qualify for its protection.
Take, for example, the case of Charles J. Powell’s trial in Linn County that year. Powell was a prosperous and well-respected farmer near Brownsville and a grandson of legendary pioneer preacher “Uncle Joab” Powell. He had a 15-year-old daughter, Leah, who had attracted the attentions of a 22-year-old Lothario named Homer Roper.
Powell didn’t favor the match, so he barred young Homer from the house. In good Romeo and Juliet style, therefore, Homer secretly met up with Leah and the two of them eloped to Pilot Rock, out in Eastern Oregon.
Case Nos. 4 & 5:
The Unwritten Law Files
This column is one of a series of case studies of the early-20th-century mania for honor killings in Oregon. It was popularly known as “The Unwritten Law,” and it was a social convention that permitted a man to murder anyone whom he knew to be working to seduce his wife or sister. Unwritten Law cases arose around the country in the 1890s and were alarmingly common until around the time of the First World War.
Today’s column discusses two cases that were widely reported as Unwritten Law verdicts, both of which are as close to being success stories for the doctrine as it was possible to find.
Things must not have gone well, because after they had been living together there for a week, Powell learned where the young couple were — probably because she contacted him, although the newspapers don’t specify — and traveled to see them. When he arrived, the two were still not married, so Powell was able to collect his daughter and bring her back home.
But then Homer came back to Brownsville and renewed his attentions to Leah. He was persistent and furtive. Powell complained to the police, who tried in vain to help. This went on for several weeks.
Finally, on the evening of Jan. 28, Leah went with her brothers to a party, and Homer crashed it. He managed to catch her eye while avoiding her brothers, and coaxed her into coming outside with him. When her brothers realized she was missing, they raced for home, fearing there had been another elopement. In response, Charles Powell grabbed an old Winchester .44-40 cowboy carbine, mounted up, and galloped toward the house.
When he got there, he dismounted from his horse, and at that moment, he heard Homer Roper’s voice coming from a nearby shed. It shouted, “I’ve got the drop on you!”
Powell whipped around in the direction of the voice and fired into the shed. Homer, apparently panicking, ran out of the shed where Powell could see him. Powell fired two more shots. Both of them passed through Homer Roper’s head.
The young man’s last words, they soon learned, had been a bluff. He’d been unarmed.
The resulting murder trial was the first in 13 years at Linn County. In the end, after a short deliberation, the jury acquitted him, and once again the newspapers got the chance to shout of another victory for The Unwritten Law. But the obvious element of self-defense was not an insignificant part of Powell’s story; after all, when a man yells from cover that he’s “got the drop on you,” he can’t really complain if the fellow he’s shouting at assumes he’s about to get shot at and reacts accordingly. Moreover, this killing occurred in defense of a daughter’s safety rather than the “sanctity of a home.”
The same was true, even more egregiously, in the 1908 case of a farmer from the Malheur County town of Ironsides named John Brown. Brown was having a rough year. His wife had left him five months before, leaving their five young daughters in his care; the oldest of these was Bessie, who was just 13 or 14 years old.
About five months after Mrs. Brown left the family, Bessie came to see her father. She told him a family friend, Bill Wisdom, had been sexually molesting her since she was 11 years old.
“At first, she did not know what it meant,” Brown told a newspaper reporter later. “When she got older, he made her do worse, and she began to realize more as she grew older what he was doing. Finally he got so brutal and unnatural that she made up her mind that she could not stand the life any longer, and she came and told me.”
John Brown was momentarily at a loss. He came to town to talk to another friend, Ike Whitely. Whitely’s advice was very sensible: The damage was done, he pointed out, and any publicity would further traumatize the innocent girl. He urged Brown to leave the matter to him. He, Whitely, would confront Wisdom and tell him to leave the area and never return. Brown accepted this offer with thanks.
The next day Brown was in town again, and saw that a flock of ducks had settled in a pond near town. Quickly he made his way to the general store and asked the owner, Ike Nichols, if he might borrow a shotgun. Nichols got one out, loaded it up and handed it over.
Just then the door opened and Bill Wisdom walked into the store.
Thus, John Brown found himself standing face to face with the man who, posing as a trusted family friend, had been secretly molesting his daughter for the previous two years — and he was holding a loaded shotgun.
The shotgun was, of course, loaded with bird shot. But from 10 feet away, it scarcely mattered. The news accounts don’t say if Brown stayed long enough to help clean up the mess he left on the floor and walls of Nichols’ store — just that he quietly went home to be with his daughters and to wait for the sheriff to come arrest him.
Several weeks later, the grand jury met and — to the surprise of absolutely nobody — decided not to indict him. And afterward, not even the Portland Morning Oregonian — which by that time was on a virtual crusade against The Unwritten Law — vouchsafed a single word in disapproval.
That wouldn’t be the case with another high-profile Unwritten Law case, though, which was coming a few months later in Portland. It would be another case of a jilted husband gunning for his rival, and it would fairly definitively put the would-be honor killers of Oregon on notice that they could no longer expect The Unwritten Law to protect them. We’ll be finishing up this series of columns on the Unwritten Law with that story, next week.
(Sources: Portland Morning Oregonian archives: Mar. 18 and May 4, 1908; Jan. 30, Mar. 10, 15, 16 and 18, 1909)
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