WOMAN AS A WRONG-DOER
Then gently scan your brother man,
Still gentler sister woman.
_Address to the Unco Guid_, ROBERT BURNS.
This is an ungallant title. When Byron likened Woman to “a German
clock, still a-repairing, ever out of frame, and never going a-right,”
he was an impudent railer. But between that and the bare admission--of
course without prejudice--that a woman may be a wrong-doer there is a
double width of difference.
The Law seems to have thought that Woman was so perfect by nature
that when she strayed from the true path it was reasonable to make it
particularly hot for her. Thus, if a man killed his wife, that was
murder; but if a wife killed her husband, that was _petit treason_.
For a wife was her husband’s servant, and it was _petit treason_ for a
servant to kill his master, or for a parson to kill his bishop; but if
he killed the bishop of another diocese that would only be murder.
You may say that these are technical details of no great interest to
Woman. Murder is just as foul an affair as _petit treason_, it is true,
but the punishment for one up to 1790 was hanging, whereas the _petit
treasoner_ was dragged on a hurdle to the stake and burned alive.
I dare say there were quite a number of good citizens who deeply
resented the abolition of this old world penal ceremony, and shook
their heads over a generation that refrained from burning women alive.
Certainly the Law did very little to temper its brutal punishments
for Woman. All the blame for the disorderly offences of the town was
then, as now, cast on Woman, and magisterial and legislatory eighteenth
century Man, having pardoned his own share in these offences, soothed
his social conscience by decreeing double doses of whipping and pillory
to the offending fair ones.
It was one of the sights of London to see the women whipped at
Bridewell. The president--a worthy alderman--took the chair, and the
rogues in blue beat the victims until the alderman struck the table in
front of him with his official hammer.
“O, good Sir Robert, knock! Pray, good Sir Robert, knock!” the wretches
shrieked out, and this so tickled the bystanders that they brought
it out into the world with them and made a catchword of it, as we do
to-day with “What ho! she bumps,” and other fool phrases.
Just as a number of things on the surface of the world to-day seem to
us right, merely because they commonly happen, so this brutal treatment
of unfortunate women caused no compunction among the good men of the
time. Even Fielding, as witty, wise and humane a man as most, was more
disturbed by the injustice of the punishment than the brutality of
it. He describes in one of his operas the fashionable _demi-mondaine_
riding in her coach whilst
Smaller misses
For their kisses
Are in Bridewell bang’d.
This light-hearted jingling song is a clear echo of the indifference of
the eighteenth century towards brutal punishments.
Woman is the favourite of the Law to this extent, that she is the only
sane person of full age who is allowed to say that she committed the
crime for which she is indicted, but that she is not guilty, inasmuch
as it was committed by her under her husband’s coercion, which the Law
presumes hinders her acting as a free agent. This holds good for all
crimes but treason and murder.
Lady Macbeth could not have pleaded that she acted under her husband’s
coercion, but she might have done so if they had only been after
Duncan’s pocket-book. Then Lady Macbeth would have certainly got
an acquittal on the grounds that her husband coerced her. It was a
statement of this legal principle that called forth the censure of Mr.
Bumble.
Long-eared as the Law may be, we are face to face with its realities,
and this peculiar freedom of Married Woman from the results of
harbouring, comforting, and sustaining her criminal husband is one of
those occasional glimpses of urbanity and right-mindedness in the Law
for which it deserves credit.
Man and wife are one, and it is really overdoing it to send two persons
to jail for one crime. Chivalry suggests that jail-going is the
husband’s perquisite. Moreover, there is some show of reason in the
Law holding that a wife may commit crimes without any criminal intent.
It would be manifestly unfair to send the wife of a burglar to prison
for receiving stolen goods that her good man had brought home from an
excursion arising out of and in the course of his occupation. The wife
in hiding away the booty is not, we will hope, actuated by the criminal
intention of depriving other people of their property, but is moved by
the natural and almost laudable desire to conceal her husband’s guilt
and prevent his wickedness from breaking up their happy home.
It seems a universal proposition that when Laws or Religions are in
want of victims they take the weakest. Women and children have always
been more acceptable sacrifices to the gods than seventeen-stone Man.
Whether this has come about through the ascertained appetites of
the immortals, or from the natural diffidence of the heavy champion
to become a burnt offering--a whim which he could enforce upon the
community with a mace--is mystery too deep for me. It almost seems as
though Law was often on the lookout for the victim likely to offer the
least resistance.
The history of witchcraft is a long-continued, unjust crusade against
elderly and sometimes insane women carried on in the name of Law and
Religion. Why these offences should be so universally attributed to
Woman, and not Man, it is hard to say. A Wizard was as great a criminal
as a Witch, but the martyrs of justice were nearly always women.
Witchcraft is still believed in and guarded against in remote places in
Britain, but it is no longer a criminal offence known to the Law. Yet
less than three hundred years ago Chief Baron Hale directed a Suffolk
jury to find two poor old women guilty of witchcraft, and pledged
his judicial word that there were such creatures as witches for two
reasons:--
“First, the Scriptures had affirmed so much. Secondly, the Wisdom
of all nations had provided laws against such persons, which is an
argument of their confidence of such a crime.”
On this conclusive reasoning were the two innocent old dames hustled
on to the scaffold, and their lives sacrificed to the world’s great
content. I have often wondered, as I read the good Sir Matthew
Hale’s summing-up--he was a man of more than ordinary intellect and
learning--whether three hundred years hence the world will be reading
some of our own judicial learning and wisdom with a kindly smile of
pity and contempt for its childish futility.
Another curious crime that our grandfathers reserved for Woman was that
of the common scold. I suppose, again, that a man might be a common
scold, but I can find no record of such. Perhaps the masculine form of
such an offence was to be a common bore, yet I cannot remember to have
heard of a man prosecuted for this crime.
The punishment for the common and unhappy scold was a ducking stool,
which seems to have rested handy near every village pond, a kindly and
practical reminder to the ladies of the village that a voice soft,
gentle, and low is an excellent thing in Woman.
This was a legal punishment of very ancient lineage, but in Scotland
and the North of England it was replaced by “The Branks,” an iron
bridle with a padlock and a spike to enter the mouth, which was forced
on to the offender. This was of doubtful legality.
These tortures were reserved for women, and were in common use up to
the days of Queen Anne. The latest case I have come across is Mrs.
Foxby’s case. She was indicted at Maidstone Assizes, found guilty, and
sentenced to be ducked. Mrs. F., however, was not going to take her
ducking “lying down,” as the saying is. She instructed her solicitor to
enter a writ of error in London. Her point was that they had called her
by the wrong Latin word for “scold” in the indictment.
The writ came on for hearing in Trinity Term, 1702, but the Judges
refused to hear it, as Mrs. Foxby had not come up to town personally.
An adjournment was asked for and granted, Chief Justice Holt--sly
humorist--reminding Mrs. F.’s counsel that if at the Michaelmas Court
the decision was against his client the Medway would be distinctly
colder in October than it now was.
The lady, however, took to her bed and played a long suit of
affidavits, and there were further adjournments, and much Medway rolled
under the bridges without a victim. Meanwhile, the Court leisurely
discussed the law of scolds, and pointed out that it was no matter
scolding now and again; it was the iteration of scolding that made it a
nuisance.
Some of the Judges expressed doubts whether ducking was a legal
punishment, and one kind-hearted Justice wondered whether it would do
the lady any real good, and feared that after all it might harden her.
Of a surety Kent water is not of a softening nature, and is to this day
reckoned by housewives a great destructor of linen.
I like to pull down the various law reports in which Mrs. Foxby’s case
is bound, and amble along with it term after term to its conclusion. It
is symbolic of what I am writing about and what is going to happen in
the end.
When Woman really takes a hand in the game and plays Law with its own
foolish cards, she will win. Mrs. Foxby was never ducked. She had
too much money and pluck for that. After many months’ delay it was
ultimately decided that Mrs. Foxby had never been called a scold in the
indictment; the Crown counsel had called her a _calumniatrix_ instead
of a _rixatrix_, and this blunder upset the Crown’s applecart. So did
Mrs. Foxby escape the Medway, succeed in her writ of error, and build
herself an everlasting name.
In the old days, when a woman married she shifted all the burden of
her debts and the sole responsibility for all the trespasses and civil
wrongs she had already committed, or was going to commit, on to her
husband’s shoulders.
Since the Married Woman’s Property Act, 1882, if a woman has separate
estate, the Law makes that liable to pay damages for any wrong she does.
This is fair enough, of course, but the Law seems to be rather harsh
upon a husband, inasmuch as it no longer allows him to touch his dearly
beloved’s bank balance, but he is still liable to pay if his wife goes
trespassing and the injured person chooses to sue him for damages.
For what can the poor husband do? He can tell his wife not to go
letting her hens into the next garden, and not to slap her neighbour’s
child, and not to tell the lady opposite that the next-door lady--well,
I won’t repeat it. But if she does not obey, he cannot lock her up,
or chastise her, or bind her over to keep the peace; he can only wait
until damages are claimed, and pay. Here is a case, then, where the Law
is rather hard on Man.
The result of all this seems to be that although the Law has treated
Woman the Wrong-doer harshly and unfairly in the past, the tendency of
modern times is towards more equality and less brutality. The Criminal
Law should be no respecter of persons, and the same crime should bring
the same punishment, be the criminal Man or Woman.
The woman wrong-doer seems to me, too, to have a grievance in the fact
that under our Law she is arrested by a male policeman, represented if
at all by a male advocate, tried by a male jury and sentenced by a male
Judge. We shall be called upon to alter this state of things before
long, and already there is a public demand for women to be appointed
to some police duties. Other countries have already seen the value of
women police in the prevention of much minor and juvenile crime by
women. In crime it is certainly the first step that is fatal; once that
is taken the volplane into hell is a simple and easy business. Women
police might do good work among young women wrong-doers.
Our Police Courts, especially in urban centres where they are governed
by Stipendiary Magistrates, have made great strides in humanity and
much good work is done by devoted women who do the good work of the
Police Court Missions. But it seems to me that the authorities ought to
watch more closely what is being done on the Continent and in America
and our Colonies in the way of investing women with official power to
deal with criminal cases.
In some American towns there are women police constables who patrol the
parks and have the right of entry into places of amusement and assist
in the guardianship of the streets, and we have the official assurance
of a Chief Constable--of Irish origin we may suppose--who says “That
the best man in the Denver police force happens to be a woman.”
In South Australia they have gone the length of raising four women to
the rank of Justices of the Peace, giving them all the powers possessed
by the men Magistrates, and in other Australian countries there are
already women police.
These experiments all prove that the idea is not a visionary one, and
in so far as it has been tested it seems to work well. In dealing
with Woman as a wrong-doer, especially in the cases of young women and
children, no one can doubt that a woman magistrate assisted by women
police would have a better chance of achieving prevention and reform
than the best understudies of Grummer and Mr. Nupkins who adorn our
local police courts.
One of the reasons why the schools and professions of Law should be
open to women is because, as we have already found in the case of
Medicine, there are special offices in the State which can only be
adequately filled by a woman. One of these is undoubtedly the position
of Stipendiary Magistrate in a city court devoted to the cases of
wrong-doers who are women or young children.