unless a man shall have forfeited this right by doing, or by attempting to do, some act which the law declares shall justify or excuse his being killed. And although the crime of unjustifiably or inexcusably killing another has always been visited with the severest penalties by the human, established and written laws of all nations, yet as far back as the days of the administration of the criminal laws of the Ancient Hebrews there were "employed every legal means, in the trial of a capital case, to arrive at an acquittal of the prisoner, to save the life of the accused," so strongly was that great people imbued with the humane maxim "whosoever occasions the destruction of a single life is as great a sinner as if he destroyed the whole world; and, on the other hand, whosoever brings about the preservation of a single life is as meritorious as if he had preserved the whole world." The Rabbis, sitting in judgment over a human being, laid every possible but legitimate object in the way of conviction where the penalty was death. And so, in these days, the tendency is to do away utterly with capital punishment, even under the forms of law. Statistics show that the inflicting of the death penalty does not prevent crime; and many verdicts of juries, and of judges sitting as juries, in capital cases are but expressions of the growing sentiment of tenderness for human life.

For each man his life is the gift of God; and, except in the case of the glorious and godly sacrifice when a man may "lay down his life for his friend," this life should not be forfeited or taken but by the established, declared and written law of the land.

We have grown far away, in the development of civil and criminal law, from the days of unwritten law. There was only one period in the evolution of law when it may be said to have been unwritten. We may not now speak of the common law of England as being unwritten law; and it is illogical, unprofessional and unfair to appeal to a jury and to seek to impress these men unlearned in the law that, because the common law might have been said to have been once unwritten, so now there is much law still unwritten which a

man may interpret and apply for himself according to his notions of right and wrong; or that whenever established and written laws do not prescribe adequate punishment for a wrong done, then individuals may prescribe a penalty for themselves, invent a phrase to give some color of sanction to it, and, under the guise of executing this penalty, wreak vengeance upon the wrongdoer.

We all know the class of wrongs which an individual may prevent, or attempt to prevent, even to the extent of slaying the would-be perpetrator; but we also know that in every such case only the right to so prevent is given, and that the crime being accomplished, its punishment belongs to the sovereign people acting solely through the instrumentalities and agencies provided by them in an orderly and lawful way for the purpose, and that "vengeance belongeth" not even to them.

Without seeking at this time to inquire into the reasons, partly psychological and partly physiological, why mankind in general revolts against the perpetration of a certain class. of wrongs for the redressing of which the so-called unwritten law is invoked, it is, on the whole, creditable to our manhood that there should be such revolt. And it may be curious to inquire why the law-making power has never undertaken to provide punishment for this particular class of offenses. We profess, individually and collectively as men, to be greatly shocked and outraged, and we are shocked and outraged, by hearing or reading of certain wrongs done, and at the fact that the law provides no punishment; but we never demand the enactment of laws which shall prescribe punishment. It is true that, from time to time, laws have been passed bringing within the category of crime special instances of a general class of cases and prescribing certain and severe punishment therefor; but none of these instances and none of these laws relate to persons of mature age in cases where the alleged victim of the alleged wrongdoer may have been herself not free from fault. There must be some reason for this; and yet we are told that in a certain class of wrongs done, or

alleged to have been done, of such a nature that the law has not classed them as crimes, and of such a nature that no one supposes the law would ever condemn them as capital, some relative of the victim, or self-alleged victim, may shoot the alleged perpetrator on sight. If the penalty for this class of wrongdoing should be death, or any lesser punishment, surely it is time for our law-making bodies to take the matter up and to prescribe a full, complete and adequate penalty. It is cruel, illogical and unsafe to say that one man may inflict capital punishment in a case where the law-making body itself would not impose such penalty.

There have been tried in the criminal courts of this country, and in the criminal courts of other countries, from time to time, and more frequently in recent years, a number of cases upon indictments for murder in which the only defense, ill-disguised in most of the cases, was this so-called unwritten law; and in none of these cases, with one exception so far as I know, was there a conviction, and that not of murder. I have been unable to fully consider all these cases, and I do not know that anything would be added to the general purposes of this imperfect address by considering them in detail. They were all of the same general type. A man shot, without warning in most of the cases, with words of earnest denial in the very face of death in others,-rushed into eternity, unshriven, upon a bare statement by the self-alleged victim of the wrong to some husband, or father, or mother, or brother, a statement in some cases deliberately made, in others impulsively made, in one at least revengefully made; the only evidence permitted at the trial being the fact and the matter of the statement of the self-alleged victim to the accused, with the further evidence that the accused believed the statement to be true; no evidence being admitted even tending to show that the statement was false, or that the imputation of wrongdoing conveyed by the statement may have been false or at least unfair..

And yet public sentiment in nearly every community, if not in every community, where these cases have been tried, has

upheld the verdict of not guilty,-not only not guilty of murder, but even not guilty of manslaughter in a case where, in order to secure some sort of conviction, allowance was fairly and liberally sought to be made by the prosecution for provocation and passion. The people of the community approve the killing by the relative of the self-alleged victim, while the representatives of these same people, when clothed with authority to make laws for the protection of themselves and of the honor of their women, have never written into their laws any penalty whatsoever, much less the penalty of death, for such alleged wrongdoing.

Is human life so cheap, is the moral wrong participated in, in nearly every case, if not in every case, as well by the alleged victim as by the alleged wrongdoer, so heinous that the law would, after all these years, with the accumulation of human experience, with all the reverence, respect and love every man worthy of the name bears for all virtuous and helpless women, prescribe the penalty of death?

Let us bear in mind that if the woman be free from blame the case will fall within one or more well-defined crimes the punishment for which may be deemed to be adequate. Should, therefore, this unwritten law be longer upheld in a civilized community? But just here let us inquire who are responsible for perpetuating the existence of this law? I say that we, judges and lawyers, are, to some extent, responsible, and that we are aided and abetted therein, to some extent, by the newspapers.

When, after stating in the beginning of the trial that no unwritten law is recognized in that State, or In that court, a judge openly congratulates the jury upon a verdict of acquittal in a case wherein the defense, shorn of all the sham pleas of insanity and cognate defenses, was the so-called unwritten law; then that judge is going far towards recognizing that law as of equal authority with the law of the land. And. when counsel, learned in the law, make direct appeals to this so-called unwritten law, or, more subtly, seek to draw analogies from the one-time existence of unwritten laws, or from

customary laws, or, more unfairly still, from the sources whence came the common law of England; then he is telling the jury, unlearned in the law, and the people of his community, that this unwritten law is as good and as binding upon their consciences as the established, declared and written law of the land.

And the newspapers, the most potent power today for good or for evil in this country, and, therefore, clothed with most solemn responsibility,-what of them? It must be said, in all fairness, while some of us may have been victims of what, from our standpoint, were unfair newspaper comments, or partial, or colored, newspaper reports, that, on the whole, the influence of the press makes for good. The trouble with the average newspaper of today is, as a newspaper man told me not long ago, that newspaper men, from the owner and the editor down, are compelled to cater to the public taste and the public sentiment for that which is sensational if they would prosper and if the newspaper is to live; and that thus they are compelled to gratify and to feed this public taste and this public sentiment by publishing what the public wants, in the manner most attractive to its perverted taste and morbid sentiment, rather than to starve and to kill this morbid, unhealthy state of the public mind by publishing simply and without color the news of the day. Of course, every man with pride in his State is more or less partial as to the people and the things of his State; but it is not mere partiality to say that the newspapers of our State are wonderfully free, in this day and generation, from sensationalism; a tribute at once to them and to us. We appreciate this all the more when we contrast the publication of accounts of the same event in our newspapers with that in some of those in other States.

This was illustrated by the publication in a newspaper of another State of the events which led up to a recent trial in one of our criminal courts, upon an indictment for murder, where the defense was the unwritten law, pure and simple, and where an honest attempt was made to secure a verdict of