Unwritten Law was like an informal ‘license to kill’

By Finn J.D. John
August 23, 2015

A CENTURY AGO, the entire country was in the grip of a sort of lethal mania. You can catch references to it in old novels by nonplussed Britons like P.G. Wodehouse — a sense that the U.S., unlike England or France or Germany, was not really a country of laws. Oh, laws were fine for things like robbery and swindling and claim jumping, but when it came to crimes involving “honor,” nothing but cold steel or hot lead would suffice.

The concept was popularly known as “The Unwritten Law.” It was, essentially, a social sanction for honor killings.

The idea was that when a man caught another man making time with his wife, or moving in on his sister, not only was he justified to seek out the perpetrator and murder him, he was morally obligated to do so. Of course, he was taking quite a risk in answering this call, since murder was punishable by hanging. He had to commit his deed in the hope that “no jury in the land” would allow the law to punish him for it, in his particular case.

This “right” was essentially for men only; there were a few cases of women claiming the protection of The Unwritten Law after gunning down their husbands’ mistresses, but with one or two exceptions, they were not successful.

The case for The Unwritten Law is articulated beautifully in a sympathetic 1890 editorial in the Portland Morning Oregonian:

“There are certain gross offenses against persons, against the family relations, against woman, against virginity and domestic chastity, against reputation and the finer sense of moral shame, too impalpable to be measured by the coarse standards of formal law; too dependent upon circumstances to be defined by any general code; too profound and far-reaching in individual cases to be punished adequately by any penalties prescribed by the law for all cases alike,” the editor wrote.

The editorial goes on to make the case that the very illegality of honor killings was the best guarantee that the “Unwritten Law” would not be abused.

“Herein lies the salvation of the principle from abuse,” the writer gushed. “Written only in the moral sense of society and never given even the popular sanction of an open jury verdict, it has never been erected into a precedent or established as a permanent general rule. No homicide ever dares plead this principle in defense … Whether he shall come out of the court room a criminal or a rightful executioner of justice depends upon no formal statute of general principle, but only upon the workings of an unconfessed sentiment in the human mind.”

There is, of course, a flaw in this logic. Most murders aren’t committed in cold blood. For a homicide who, for example, whips out a revolver and murders a fellow poker player after being accused of cheating, the very next topic his mind turns to is how he might escape being hanged for it. For literally thousands of hot-blooded killers, The Unwritten Law offered a ray of hope: could they but convince a jury that they thought the deceased was surreptitiously getting busy with a female relative, they might walk free.

And so it was that, in the course of the 1890s, The Unwritten Law went from a long-shot throwing of oneself upon the mercy of a jury, to an almost-habitual claim of “temporary insanity” for murderers who had killed in anything less than ice-cold blood. By 1897 or so it was beginning to become a serious problem in the Beaver State.

This is almost certainly why, just a few years after publishing that friendly editorial, the Oregonian had completely reversed its position on The Unwritten Law.

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“In America we make a bloody burlesque of justice by saying that any man may safely slay his fellow if he can make a jury believe that he believed his victim was criminally intimate with his family,” the paper scoffed in 1898. “Of course, on this plea any malignant wretch might cunningly contrive suspicious circumstances and situations and do murder on his pretended conviction of guilt.”

This implication was almost certainly accurate. But regardless of whether or not any murderer successfully dressed his crime up as an honor killing and got exonerated on that basis, the period from about 1896 to 1911 saw a stunning rise in the number of Unwritten Law killings. Sometimes, the killer’s claim was of “temporary insanity”; sometimes they invoked the Unwritten Law directly. Most of the time, it worked — until the day came when most of the time it didn’t. By the 1920s, “unwritten law” claims were rare. But while it lasted, the rule of The Unwritten Law — like that of its close cousin, vigilante justice or “Judge Lynch” — made for some very interesting frontier history.

In previous Offbeat Oregon columns we’ve talked about a couple of these killings.

There was, of course, the 1906 assassination of Bride of Christ “Holy Roller” cult founder F. Edmund Creffield by the brother of the woman he sexually “purified” in a religious ritual (here's a link to that story). Though he killed in cold blood and made no attempt to claim insanity, gunman George Mitchell was found not guilty and hailed as a moral hero — and, after his other sister (also a cult member) later gunned him down in precisely the same way he’d killed Creffield, a martyr as well.

Another case that we’ve discussed was the deadly resolution of a tawdry melodrama between cavalry scout Charles Reynolds and a smooth-talking music teacher who was moving in on his young wife, in 1907. You may remember this story as the one in which the young wife, asked to identify the body of her former lover, broke down in tears of obvious grief and passionately kissed the corpse. (Here's a link to that one.)

Over the next few columns, we’re going to talk about a few more examples of “Unwritten Law” cases in Oregon. They make for fascinating study. They can be shocking and tawdry, and at least one of them will leave even many modern readers with a grim smile of approbation for the killer’s act. But the most rewarding part of revisiting these century-old scandals is to wonder, based on the evidence we see today — did justice miscarry? Was the jury so caught up in the mania for vigilante justice that it failed to notice the cracks and flaws in the defendant’s argument? Did some Oregonians literally get away with murder, and end up covered with laurels by their enthusiastic fellow citizens celebrating them as brave, noble men who did not shirk from their terrible and bloody duty, when their actual crime should have earned them nothing but shame and a walk to the gallows?

In some cases, it seems almost certain that the answer is yes.

(Sources: Portland Morning Oregonian, 2-01-1884; 5-24-1890; 8-14-1898; 11-18-1901; 8-03-1906)

TAGS: #UnwrittenLaw #HonorKillings #Murderers #TemporaryInsanity #Lynching #HolyRollers #EdmundCreffield #CharlesReynolds #ProfessorHerbert #MiscarriageOfJustice #NoCourtInTheLand #Homewreckers #KissTheCorpse #MassHysteria #STATEWIDE