by Chris DeRose
Daniel Jarboe and his sister walked down the street on an unpleasant errand. She had fallen for the promises of Rufus Nally and given him what he wanted. Evidence of her deception was more apparent by the day. They found Nally near the Washington Navy Yard, where he worked as a blacksmith. “Do you intend to marry her?” Jarboe asked. Nally refused, “positively and perseveringly.” Jarboe shot him, the bullet entering just below his heart. In his final moments, Nally, old enough to trick a woman into bed, wanted nothing more than his mother. He made it to her house with minutes to live. An excited crowd gathered around Jarboe. He told them to be calm and that he was turning himself in.7
The trial was heard in Judge Crawford’s courtroom. The defense argued that Jarboe was insane and that Nally reached for a weapon, making it a case of self-defense. Prosecutor Barton Key told the jury the “killing was a case not of insanity or self-defense, but an act of revenge. Jarboe’s attorneys appealed to jurors with evidence of his sister’s seduction. Key, on behalf of the dead man, recited an old Baptist poem:
No longer seek his merits to disclose,
Nor draw his frailties from their dread abode,
There they alike in trembling hope repose,
The bosom of his Father and his God.8
Key’s efforts to convict Jarboe were “long and protracted.” The jury’s deliberations were not. They freed Jarboe after fifteen minutes, followed by a “general rejoicing” in the courtroom.
A year later, Daniel Sickles sent Philip Barton Key to his fate. The dam had been building against seducers for years, and now it burst. Sickles forced the conversation into every American living room. What were the consequences of adultery? What were a man’s obligations? The Unwritten Law was announced at Washington City Hall and spread throughout the United States.
The temporary insanity defense, popularized in the Sickles trial, became a cornerstone of the Unwritten Law. As with Sickles, the insanity plea opened the door to evidence of an affair. These acquittals were not nineteenth-century juries falling for pseudoscience: it was a belief held with increasing fervency that a man was no criminal who killed the author of his dishonor.9
If the victim made any attempt to resist the attack, it would be argued as self-defense. The Sickles lawyers never entirely abandoned this theory, pointing to the Derringer at the scene that did not fit the ball taken out of Key, the fact that Key had reached into his jacket pocket, and that he was known to carry weapons.
In 1867, the New York Constitutional Convention was interrupted by the killing of Harris Hiscock, who had an affair with General George Cole’s wife while he was fighting the Civil War. James Brady defended Cole. “All the laws that society can ever make cannot take out of our hearts the instincts that God has put there. Among those instincts we find that of the purpose of preserving the honor and integrity of our family.” During his closing, he channeled Cole, saying: “In the blow that I struck and for which I suffer, I strengthened the security of the homes of my fellow citizens as much as I did when I struck against the enemy who would have laid waste our country.” It was Brady’s last address to a jury.10
Cole acknowledged being sane immediately before and after the trigger pull but temporarily insane at the instant of the shooting. The first jury was deadlocked; the second acquitted him. The New York Times called it “the most extraordinary verdict ever returned by a jury made up of men supposed to be sane themselves.” In the eight years after the Sickles verdict, Cole’s defense was able to cite twenty-eight cases of the Unwritten Law. Considering the limited information flow of cases between states, this was a small fraction of the real number and took no account of killers who were never charged.11
Daniel McFarland represented the worst of the Unwritten Law. Two years after Cole, he walked into the office of the New York Tribune and shot Albert Richardson, an editor. Richardson was set to marry Abby Sage, McFarland’s ex-wife. Abby and Richardson married on his deathbed, in a wedding performed by Reverend Beecher, with Horace Greeley as a witness. McFarland was a violent drunk who had badly misrepresented his financial situation, an abusive and controlling husband who had made Abby miserable until she divorced him.
Yet McFarland was defended at trial by John Graham, who said this was the third case he’d handled in twelve years where he had “the distinguished honor . . . of upholding and defending the marriage relation.” The brand of the Unwritten Law that excused McFarland’s cruel and cowardly act was created by men, for the benefit of men, and one that discounted the agency of women (it was alleged that Richardson had alienated Abby from McFarland). Abby went on to success as an actress, and she once performed at the Lafayette Square Opera House, which had been built over the Club House and scene of Key’s shooting. [Before it was torn down, the Club House served as the home of William Seward, Civil War Secretary of State, and the scene of his attempted assassination.]12
As with the Mercer trial, the Unwritten Law protected brothers and fathers as well as husbands. William McKaig seduced Myra Black, the sister of his friend since childhood, Harry Crawford Black. McKaig used the secret to keep her as his mistress while he married another. Not only had McKaig refused to marry her, he wouldn’t let anyone else do so. He revealed the secret to a man who had proposed to her. Myra became pregnant four years later and told her father. Her father shot McKaig in the arm, but he lived. Enter Harry, brother of Myra, who lived away. Harry Black gunned down McKaig on the main street in front of twenty witnesses. He was acquitted in less than an hour. But state-sanctioned revenge couldn’t restore Myra’s lost happiness, and she later committed suicide.13
The Unwritten Law covered dishonor to sisters and daughters as well as wives. Francis Bartley was killed in his dairy field, quite unexpectedly, by the son of his married lover when he intercepted a love letter. Another Sickles, in Moundsville West Virginia, killed his own nephew when he heard his daughter screaming for help.14
Sometimes a legal veneer had to be used, but often the Unwritten Law was invoked directly. Eadweard Muybridge, a protégé of Leland Stanford, traveled a great distance to Calistoga to shoot his wife’s lover. “The only thing I am sorry for,” he said, “is that he died so quickly.” He was mobbed by a supportive crowd at his acquittal.15
Some judges would order juries to ignore the Unwritten Law. When George Cline and two accomplices killed the actor “Handsome” Jack Bergin for attempting to rape his wife, the judge instructed the jury “that no evidence could sustain an acquittal.” The jurors didn’t care. “I have a wife and daughter,” one explained. Prosecutors attempted the same thing, such as the one who told a jury: “There is no such defense as the Unwritten Law.” The jury disagreed. The American Bar Association held a convention and complained. Nobody cared.16
In 1907, an article in the Virginia Law Register proposed writing down the Unwritten Law. The Unwritten Law was so strong at this point that “Not one jury in a hundred would fail to acquit” a father who hunted his daughter’s seducer for a hundred days. The constant undermining of the jury oath threatened to shake the foundation of the entire system. “Is there any doubt that the common judgement of men fully justifies homicide committed when the provocation is the invasion of martial rights or an attack upon the virtue of the innocent?”
Rather than the continued artifice, would not the interest of justice be better served, it was asked?17
Evelyn Nesbit, a gorgeous showgirl, told her husband, Harry Thaw, that she had been drugged and raped by Stanford White. Thaw approached White on the rooftop theater of Madison Square Garden, telling him, “You’ve ruined my wife.” He shot him three times, twice in the face, during the show’s finale (“I Could Love a Million Girls”). His first jury hung, and his second found him not guilty by reason of insanity. A twelve-minute silent film, The Unwritten Law, was made about the White shooting (it ran into trouble with censors), and the story also became a Broadway play.
The Unwritten Law protected women as well as men. Mary Harris of Chicago defended her own h
onor against Adoniram Burroughs, who had broken their engagement and encouraged her to join him in a house of ill repute.
Margaret Finn shot her fiancé “on a crowded Los Angeles Street.” She was pregnant, and he was leaving her. She claimed not to remember firing the shot but said, “I had placed my honor and my life in his trust and he betrayed that trust” and therefore “deserved death.” A judge agreed, dismissing her case without the need for a trial. That same year, Estelle Corwell killed her lover of six years for threatening to expose their relationship. In a trial that featured Wyatt Earp as a defense witness, she was acquitted by reason of insanity.18
Clara Falmer, fifteen years old and pregnant, may have seemed the most vulnerable person on earth to the boyfriend who refused to help. He laughed. She shot him dead across the dinner table.19
The Law could extend to anyone who aided in the act of dishonor, not necessarily the libertine himself. In 1912, Al Boyce Jr. was shot and killed outside a church in Amarillo. His assailant, John Sneed, was disguised as a bum, “with a heavy growth of beard and wearing overalls.” Boyce had made the mistake of seducing Sneed’s wife, Lena, and taking her to Canada. Sneed had already killed Boyce’s father for helping them escape and was awaiting a retrial after a hung jury. Sneed fired the fatal shot against Boyce as he lay wounded, saying, “I guess you are dead.” Sneed would ultimately be acquitted in the cases of father and son.20
Ultimately, no place was safe for the libertine. Alfred Hester missed his moment of Unwritten Law glory when Virgil Butt returned fire, killing him in the streets of Portland. But killing the husband only delayed the inevitable. “Butt Convicted of Murder,” the headlines said. He was sentenced to death.21
Then there are the cases that never made it to trial, like the 1926 Richmond grand jury that refused to indict a railroad flagman who had killed his wife’s lover after catching them together in a car. Or the coroner’s jury in Kentucky that refused to charge Nancy Murill in 1904 for killing her husband’s lover. There’s no telling how many were never formally charged or never even arrested, and these stories were much less likely to be covered by the press.
If a killer was arrested and indicted, there were still directed verdicts, where a judge would dismiss the case without sending it to the jury, such as the Georgia judge in 1918 that acquitted J. L. Gibson, who killed his wife’s lover after finding their letters.22
A defendant who made it all the way to a guilty verdict could expect a comical sentence. One judge, in fining a convicted murderer $5, said: “You are guilty, technically, but I would have done the same thing.” When another defendant was fined $500, he was so indignant that he tried to get the verdict overturned, even though a second trial could result in a death sentence.
If a defendant were somehow convicted and given a harsh sentence, there was executive clemency. The Unwritten Law was a manifestation of popular feeling, and elected governors responded with pardons and commutations. Archibald Brown was shot dead in bed with another man’s wife. The governor of Kentucky announced that he would pardon the killer if he should he be convicted. Remarkably, the victim was the governor’s own son (the grand jury refused to indict). The Unwritten Law was more powerful than a father’s love for his son, as well as racial animus in the era of Jim Crow. In 1893, the governor of South Carolina pardoned a black man for the killing of a white man caught having sex with his wife. The Unwritten Law was “as good for the negro as the white man,” the governor explained. Speaking of governors, Alabama elected John Anthony Winston, who had been acquitted for a killing under the Unwritten Law years earlier.23
A study of a small sample of these cases found that only thirty times out of 201 would a defendant receive a serious punishment. An 85 percent success rate would be astonishing by itself. But that doesn’t tell the whole story. The power of the Unwritten Law meant it was asserted even when defendants were lying. It was in these instances, where a jury did not believe the defendant, where the wife or the daughter took the stand to deny the claims of the defense, when the jury would convict. Killers vindicating their family honor, if believed by the jury, were safe.24
The Unwritten Law emerged from a society that put a premium on female virtue and entrusted men with the responsibility for its preservation. Thus, men who also killed their wives did so at their peril—like Joseph Steinmetz, who was honeymooning in New York with his wife of sixteen days. After a night of binge drinking, he woke up to find her in bed with a Catholic priest in their hotel. He was convicted of only one count of manslaughter— for his wife.
In 1949, the Oregonian wondered whether “a venerable American legal tradition” had been upset by a recent jury. “They failed to acquit Dr. Robert C. Rutledge, Jr., of the murder of Byron C. Hattman, the alleged seducer of his wife. He received a seventy-year sentence. In so doing, they virtually threw out of the window the Unwritten Law.” One hundred and five years after the Mercer trial, an unsuccessful Unwritten Law defense in Cedar Rapids, Iowa, made headlines in Portland, Oregon. In fact, the Oregonian published a long Sunday feature recapping the history of the Unwritten Law, including the Sickles trial.25
The Rutledge case was not the end, as it turned out, but the end was near. Two of the last successful uses were in 1954 and 1958. By coincidence, both killings were committed by dentists.26
The beliefs in society that had created and so firmly entrenched and applied the Unwritten Law changed: women were increasingly acknowledged as more than passive participants in sexual affairs. Accordingly, men were seen as something more than villainous corrupters of female virtue. Moreover, expectations regarding female chastity were changing. All of these factored to repeal a law that had never been written.27
How many died under the reign of the Unwritten Law? It is impossible to say. The number is in the thousands. No attempt has ever been made to collect every case. Nor could anyone come close. One of the few attempts to study it turned up 201 cases by searching three newspapers for the phrase “Unwritten Law” and the word “trial.” But they were simply trying to find enough cases to analyze. The “Unwritten Law” was firmly in place well before it had a consensus term to describe it. Further, that sample is only three newspapers out of many thousands. The vast majority have never been digitized and are not available for searching. Further, not every case would have been covered in the press. Many more would have been reported without explaining the motive or the defense. The true number is and will remain a secret.28
It was 1893. Champ Clark won his first race to congress and had one more trial before heading to Washington. A St. Louis street car conductor had killed one of his colleagues for seducing his wife. Clark would defend him. “I laid down the proposition flat,” he said, “that an American jury would not, and should not, convict under such circumstances.” He cited three cases, two of which had been tried in the same courtroom. The third was United States vs. Daniel Sickles. The conductor was soon to join the defendants in those cases, freed by the Unwritten Law.
In his freshman class in congress, Clark was surprised to find Daniel Sickles, returned to the House after a thirty-year hiatus. Clark remembered well when his trial was the talk of the nation. He searched for a transcript and found one in the law library of the Supreme Court.
Clark eagerly paged through the dramatic days of the trial. His four-year-old son climbed into his lap and looked over his shoulder. The transcript came complete with the famous drawings from the illustrated newspapers.
“Daddy, who is that man shooting the man lying on the ground?”
“General Sickles.” His son often came to the House and knew many of the members.
“The old man who walks on crutches? I’ll ask him about it tomorrow.”
“No, you must not do that,” Clark said. “If you do, he will not give you any more candy.”
At his son’s request, they traveled to Lafayette Square to see the tree from the picture. They approached the custodian of the park, “who looked old enough to have been in the ark.” What tre
e did Key hide behind when Sickles was shooting him?
The custodian said, “You see that little elm between the two big elms? That little tree is in place of the Key tree. Souvenir hunters cut the bark off the original tree till they killed it.”
Clark was as anxious as his little boy “to have General Sickles tell me all about killing Key.” He asked questions in private conversations, calculated to lead him to subject of the trial.29
Sickles had many stories. He was one of the central figures of the Civil War; an intimate of Abraham and Mary Todd Lincoln; Reconstruction governor of South Carolina, where he fought for black equality in the bosom of Secession; Ulysses S. Grant’s ambassador to Spain; an expat in Paris, where he carried on an affair with Isabella II, exiled Queen of Spain; and a frequent visitor to his lost leg at the Army Medical Museum.
But he never spoke about the thing that Clark wanted to know, leaving him to wonder: “Did his memory most frequently dwell on the halcyon days of youth, when he stood on the seashore in New York, watching the stately ships of all nations come and go like great seagulls? Or upon his first successes in New York politics, when he ‘ran with the machine?’ Or upon the rosy dawn of his congressional career, away back in the ‘fifties? Or upon the sudden eclipse of his political sun? Or upon the glorious battle pictures of which he was part? Or upon his brilliant career as a diplomat in foreign lands? Or upon the splendid and peaceful eventide of his turbulent existence? Did he ever think of Philip Barton Key, whom he sent, with his sins fresh upon his head, to the unknown world? I wondered whether, if he could go back to that February morning in 1859, when his pistol shot startled the world, he would do it again. I thought, ‘It won’t, it can’t be long, in the very nature of things, till he must stand, face to face with Key and the lovely woman for whose forbidden love he died, at the judgment bar of God, and his thoughts must be of them sometimes. Does his leonine spirit quail to think of them, or does he justify himself to himself still for that historic killing?’ Who knows?”