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THE GREEN BAG

THE JURISPRUDENCE OF LAWLESSNESS BY THOMAS J. KERNAN A FEW weeks ago I received from a great metropolitan journal a tele graphic request for a legal opinion stated substantially as follows : "A man of wealth takes a young and beautiful girl under his protection. After the lapse of a year or more, she marries another man of wealth. After the marriage, her former protector does not renew his relations with her, but makes disparaging and insulting remarks about her, and her husband kills him without warning. Does this statement of facts present a case that would warrant a jury in returning a verdict of 'not guilty' under the 'unwritten law'?" I promptly replied that I was unable to give an opinion upon the case stated as I was an attorney-at-law and not an attorneyat -lawlessness. The evident good faith and charming naivete' of this request, however, started a train of thought that ended in the query: "Do not we in America have, in reality, a jurisprudence, as it were, of law lessness as well as a jurisprudence of law?" The more thought I have given this subject the more thoroughly convinced I have be come that we have such a jurisprudence with its general principles — or rules, if you object to the use of the word principles in such a connection — its particular excep tions, refinements and distinctions. It is a jurisprudence which has almost assumed the dignity and symmetry of a system. It is neither legislative nor judge-made. It might, not inaptly, be styled a system of jury-made lawlessness, or juries' imprudence, which recognizes rights that are forbidden by law and denies rights that are granted by law. Necessarily it has no codes or text books, hence its pre-eminent claim to the title of "The Unwritten Law." It is in flagrant violation of all statutes, hence it is styled by its advocates, " The Law Above

the Statutes " or "The Higher Law." It has its basic foundation in the public opinion of the communities in which it prevails, and has all the certainty and sanction that con stitutions or statutes could give it. It is not my purpose at this time to codify this jurisprudence of lawlessness or to make an exhaustive commentary upon it. The subject is too vast to be thus treated within the limits of a paper of this character. I shall merely formulate its fundamental rules constituting, as it were, the decalogue of the system, endeavor to trace their origin and find the reasons, if possible, of their validity and persistence, touch upon their effects upon society and ask if some of them may not be amended and legally adopted into the jurisprudence of law, and the rest wholly abrogated or made harmless. This jurisprudence of lawlessness has both its criminal and its civil features. I have undertaken to formulate the system 's deca logue in the following ten cardinal laws: LAW I. Any man who commits rape upon a woman of chaste character shall, without trial or hearing of any kind, be instantly put to death by his captors or other body of respectable citizens not less than three in number; and they shall have the right to determine the mode of execution, which may be both cruel and unusual, the Constitution and laws of the state and of the United States to the contrary notwithstanding. LAW II. Any man who commits adultery may be put to death with impunity by the injured husband, who shall have the right to deter mine the mode of execution, be it never so cowardly.