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Before His Passion Had Time to Cool: The “Unwritten Law of Adulterous Provocation” and Urban Legend

Published online by Cambridge University Press:  18 July 2014

Jeffrey Miller
Jeffrey Miller
Affiliation:
Senior Feature Columnist, The Lawyers Weekly
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Extract

Neither can he be thought guilty of a greater Crime [than manslaughter], who finding a Man in Bed with his Wife, or being actually struck by him, or pulled by the Nose, or filliped upon the Forehead, immediately kills him.”

It used to be in the United States, that if you came home and found your wife in bed with the postman, it was perfectly okay to get your shotgun and blow the heads off both of them.”

Professors of criminal law like to impress their students with the “unwritten law of adulterous provocation.” It is seldom part of the curriculum; usually, it seems to present itself off-the-cuff, a professorial ploy to keep lectures interesting, a juridical curiosity that the students can regale friends and family with over dinner. In some classrooms, the unwritten law is limited to the southern United States or to Texas. In my case, at a southern Ontario law school, the entire U.S.A. (with the possible exception of Alaska and Hawaii) was implicated.

My teacher probably had heard the same story in a slightly different language from his own professor of introductory criminal law. Rather than gustily losing their heads, perhaps the lovers were “filled full of lead,” or the husband treated his wife to a summary shotgun divorce.

Type
Intervention
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 10 , Issue 2 , Fall/automne 1995 , pp. 99 - 108
Copyright
Copyright © Canadian Law and Society Association 1995

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References

1. Hawkins, W., A Treatise of the Pleas of the Crown (1716) c. 31, s. 36Google Scholar.

2. LaFave, W. R. & Scott, A. W., Substantive Criminal Law, vol. II, (St. Paul, Minn.: West, 1986) at 259Google Scholar.

3. Brunvand, J. H., The Vanishing Hitchhiker (New York: Norton, 1981) at iiGoogle Scholar.

4. Ibid. at xii.

5. Ibid. at 22.

6. Ibid. at 136.

7. Ibid. at 141–46.

8. Brunvand, J. H., The Mexican Pet (New York: Norton, 1986) at 132Google Scholar.

9. In Renteln, A. Dundes & Dundes, A., eds., Folk Law: Essays in the Theory and Practice of Lex Non Scripta (New York: Garland, 1994) at 4Google Scholar, the authors define folk law as ‘traditional law, law passed on orally from person to person, from generation to generation.” Anthropologists seem to view it as at least nominally binding. See this essay, infra.

10. Bl. Comm. IV at 191–92.

11. Maddy's Case (1671), 2 Keb. 829Google Scholar, 1 Vent. 158 T. Raym. 212. The branding indicated, of course, that Maddy had used up his share of the king's mercy.

12. Section 232(2) of the Canadian Criminal Code, R.S.C. 1985, c. C-46, a fairly clear summary of the Anglo-American common law, directs that “a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation enough … if the accused acted upon it on the sudden and before there was time for his passion to cool”.

13. See, for example, “Comment, Recognition of the Honor Defense Under the Insanity Plea” (1934) 43 Yale L.J. 809CrossRefGoogle Scholar [hereinafter Comment]. Insofar as the term “unwritten law” is sometimes used to describe judge-made or other state-sanctioned (non-statutory) law (see infra, note 21), “honour defence” is probably less confusing in this context, and perhaps more revealing.

14. In Opie, I. & Opie, P., The Lore and Language of Schoolchildren (London: Oxford University Press, 1959)Google Scholar, the authors include sundry versions of this nursery rhyme in their chapter on “Codes of Oral Legislation.” It seems, though, that adults are just as prone to believe that finders are keepers and losers have no choice but to cry about it. I, for one, learned the rhyme from my mother, not in the schoolyard, and I am certain that she believes it to be enforceable at law to this day. (The idea, by the way, that finding solidifies ownership is codified in another version of the rhyme which the Opies give, “Finding's keeping; taking back's stealing.”) Part of my work in legal journalism includes appearances on radio phone-in programs, where I hear insistently from the public that oral contracts are not enforceable.

15. The Vanishing Hitchhiker, supra note 3 at 10–11, 128. When I say ”on its face,” I mean to suggest that the mistakes about finding and oral contracts might also carry a moral subtext—“Be careful,” “Get it in writing,” “Mind your belongings”—not apparent on their surfaces.

16. See, especially, Frye, H. N., Anatomy of Criticism (Princeton: Princeton Univ. Press, 1957, 1971) at 131–242Google Scholar; The Educated Imagination (Toronto: Canadian Broadcasting Corporation, 1963)Google Scholar, passim.

17. This is, of course, the Austinian view of law as a command backed up by state sanction. See Austin, J., The Province of Jurisprudence Determined, Hart, H.L.A., ed., (London: Weidenfeld & Nicolson, 1954) 198Google Scholar.

18. Renteln & Dundes, supra note 9 at xiii.

19. Fine, G. A., “Cokelore and Coke Law: Urban Belief Tales and the Problem of Multiple Origins” (1979) 92 Journal of American Folklore 477CrossRefGoogle Scholar.

20. Heuston, R. V., “Donoghue v. Stevenson in Retrospect” (1957), 20 Modern Law Review 1CrossRefGoogle Scholar. As Donoghue managed to become a leading case without ever going beyond pre-trial motions, the plaintiff never proved her case.

21. Cokelore and Coke Law, supra note 19 at 481. Fine relies on a “guesstimate” by Khan, E.J., The Big Drink (New York: Random House, 1960) at 92Google Scholar, that for every one case appealed, ten claims are filed.

22. As Gray, J. Chipman points out in The Nature and Sources of the Law (Boston: Beacon Press, 1909) at 160Google Scholar, in jus scriptum Roman law included statutory as well as judge-made law and responsa prudentium. But Hale and Blackstone (1 Bl. Comm. 63) “confine the term lex scripta to Acts of Parliament,” and consider what we call the “common law” to be leges non scriptae. See also A. W. B. Simpson, “The Common Law and Legal Theory” in Renteln & Dundes, supra, note 9 at 131–32.

23. La Fave & Scott, supra note 2 at 268–70.

24. Rembar, C., The Law of the Land (New York: Simon & Schuster, 1980) at 100Google Scholar, compares this to the Anglo-Saxon infangthief. “A man who had been attacked and injured had the right to kill whoever injured him, a notion the great state of Texas has conserved for the benefit of cuckolds.”

25. Sensobaugh v. State, 244 S.W. 379 (CCA. Tex., 1922). In his Institutes, c. 3, s. 62, Lord Coke records a case from 1228 in which a man and wife castrated “John the monk” after the man surprised the wife and cleric in flagrante delicto.

26. See, e.g., La Fave & Scott, supra note 2 at 270 and “Comment”, supra note 13 at 809.

27. Roberts, W. L., “The Unwritten Law” (1922) 10 Kentucky L.J. 45Google Scholar. Although Roberts apparently sees this as giving the jury its due, functionally it also mediates between folk belief and judge-made law, giving the jury true “trier” powers, including the power to create binding precedent.

28. The Vanishing Hitchhiker, supra note 3 at 128.

29. Campbell v. State, 49 S.E. 2d 867 (Ga. S.C. 1948).

30. Burger v. State, 231 S.E.2d 769 (Ga. S.C, 1977) at 770 [hereinafter Burger].

31. Apparently, this is a legal term of art: see MacLennan v. MacLennan, [1958] infra note 31 at 105.

32. MacLennan v. MacLennan [1958] Sess. Cas. 105.

33. Ibid. at 114. His Lordship also wondered whether, as corollaries to the husband's argument, a woman inseminating herself alone in her bedroom with a syringe would be an adulteress; a physician assisting her could be a co-respondent and when (if ever) the seed donor might become a co-respondent—at donation time, or when the insemination took place.

34. Ibid. His Lordship elaborates: “[i]f artificial insemination by a donor were to be regarded as adultery, then I opine the view that it would be adultery whether the seed germinated or not, and that in the latter case there would be no resultant adulteration of the strain.”

35. Burger, supra, note 30 at 769.

36. See, for example, R. v. Lavallee (1990), 66 C.R. (3d) 329 (S.C.C.).

37. See Miller, J., “Is There Really A Twinkie Defence?” The Lawyers Weekly (16 January 1987) 10Google Scholar.

38. Zamora v. State, 422 So.2d 325 (Fla. App. 1978), Zamora v. Wainwright, 637 F. Supp. 439 (S.D. Fla. 1986), aff'd sub. nom. Zamora v. Dugger, 834 F.2d 956 (11th Cir. 1987).

39. See Frondorf, S., Death of a “Jewish American Princess” (New York: Villard, 1988)Google Scholar.