On September 4, 1908, a twenty-six-year-old farmer named James Bachus was found dead of a gunshot wound outside his own home in rural Gifford, Idaho, and the house on fire. It did not take long for suspicion to fall on his twenty-two-year-old wife, Nancy, who told several versions of her story, some of which implicated various men who lived in the area. Eventually, she admitted that she had shot her husband. Everyone in Gifford knew—and some testified to it at her trial—that Jim Bachus was a physically and emotionally abusive husband. Nancy’s lawyer could not claim self-defense, as Bachus had been shot in the back, so he argued that the police officers had forced a confession from her. Even though Nancy testified on the stand that she had shot her husband, the all-male jury acquitted her after only twenty-six minutes of deliberation.1
In 1895, New York City resident and Italian immigrant Maria Barberi found herself pregnant by her live-in boyfriend Domenico Cataldo, who had long promised to marry her but kept putting it off. Now, however, Maria needed him to come through for her and save her reputation. But Cataldo was not in the marrying mood and told her, “Only pigs marry.” The day he uttered that nonsensical statement was his last. As he played cards in a nearby bar, Maria slit his throat from behind in front of several witnesses. Her death sentence at her trial set off a nationwide uproar of protests. Her lawyers got her a new trial on the grounds of an insanity defense. On the stand, she claimed, probably untruthfully, that she had been “a good girl” (a virgin) before meeting Domenico Cataldo, and she was acquitted after an hour of deliberation.2
In 1909, Verna Ware of Texas was acquitted of killing her druggist boyfriend, and an innocent bystander as collateral damage, while he was on trial for drugging her, raping her, and not marrying her when she subsequently gave birth to their child. In 1915, also in Texas, Winnie Jo Morris was found not guilty for killing the father of her unborn child because he would not marry her.3
What was going on here? For about a one-hundred-year span from the mid-nineteenth to the mid-twentieth centuries, there was a construct referred to as the Unwritten Law. Originally arising in the South, it eventually spread to all parts of the country. In its essence, the Unwritten Law applied to men whose wives had been found cheating on them or to husbands/fathers/brothers who discovered that a man had “dishonored” their wives/daughters/sisters, which could refer to anything from unwanted advances or harmful gossip to seduction and rape. This violation of a woman’s honor called for the man to shoot the offender and not be held responsible for it. Sometimes he was not even arrested for the murder, but if he were, then prosecutors quickly discovered that no jury would convict him in those circumstances. Naturally, the Unwritten Law—being neither written nor a law—could not be used outright as a defense, but everyone understood it to be in operation. The law and the jury were happy if they could use something to legitimize the verdict, such as “temporary insanity,” which was often the supposed defense. In fact, the Unwritten Law was often referred to as “dementia Americana.”4
Eventually, the Unwritten Law came to apply to women who found themselves in circumstances where their own honor was besmirched or who were physically abused by their husbands or boyfriends. As women became more and more independent at the turn of the century, it was no longer assumed that men would come to their aid in matters of honor or abuse. Added to these cases was the very patriarchal attitude of male juries toward womanhood, and so there were probably more egregious cases of ignoring the fact that perhaps the woman had not been ruined after all but was a willing participant in her own downfall.5
As late as 1977, the Unwritten Law was applied in the famous “Burning Bed” case, where a woman abused by her husband for thirteen years set fire to his bed and killed him. Self-defense could not be used as the victim was asleep and not an immediate threat to her at that time, so the jury came back with a verdict of “not guilty by reason of temporary insanity.”6
In fact, although it was often the case that male defendants successfully invoking the Unwritten Law were prosperous members of the upper classes, when it came to women on trial, juries did not always distinguish between rich and poor, as they almost certainly did with men. In 1902, at the same time New Yorkers were eagerly reading the salacious details surrounding the murder of Walter Brooks and the arrest of his girlfriend Florence Burns, a working-class German woman named Lizzie Madaus killed her husband William with a potato knife she was using to prepare their supper.7
Lizzie Madaus was pregnant with her sixth child, and her husband was an alcoholic who frequently beat her up. On the day of the murder, Lizzie was peeling potatoes when William came in, drunk, and began punching her in the face. He knocked her down and proceeded to beat her in a fury. The potato knife had fallen to the floor, whereupon Lizzie grabbed it and tried to fend off her husband’s blows with it, stabbing him multiple times and killing him. The two oldest children testified on behalf of their mother, and Lizzie herself took the stand and admitted to the killing, although she claimed she had gone into something of a fugue state and didn’t remember it all. And that was the hook the jury could hang its hat on. To the absolute outrage of the judge and the prosecutor, Lizzie was quickly acquitted on the grounds of “temporary insanity.”
Of course, Lizzie Madaus’s acquittal was more in the realm of self-defense, although husbands were allowed to beat their wives and children at that time, so it would not have been seen as justifiable homicide. Nonetheless, the jury saw the justice of protecting this woman and her children from the written law against murder by applying a version of the Unwritten Law, similar to what happened in Nancy Bachus’s and Francine Hughes’s (Burning Bed defendant) trials.
As for Florence Burns, it was clear that, once it was revealed that Walter Brooks had refused to marry her after having supposedly taken her virginity and possibly getting her pregnant, the Unwritten Law was a subtext in the case. It was there in the rumor that Florence was being allowed extra exercise reserved only for pregnant prisoners.8 It was there in the question asked of Thomas Brooks as to whether he and his wife allowed Florence to stay in their home for three weeks because she “had a claim on them.”9 It was there in the sermons of ministers that Walter Brooks had deserved what he got, and in the opinions of newspaper editorial pages that Florence was justified in killing him.10 And it was there in attorney Foster Backus’s insistence—more than once—that if the true facts of the situation were known, not a jury in the land would convict Florence Burns.11 Seldom mentioned by name, the Unwritten Law was understood by everyone to be the solution to the mystery of the murder of Walter Brooks. Why else would her attorney allow her to languish in the Tombs if she had a legitimate defense?