With a view, possibly, to promoting respect for law by making the
statutes so conform to public sentiment that none will fall into
disesteem and disuse, it has been advocated that there be a formal
recognition of sex in the penal code, by making a difference in the
punishment of men and of women for the same crimes and misdemeanors. The
argument is that if women were "provided" with milder punishment
juries would sometimes convict them, whereas they now commonly get off
altogether.
The plan is not so new as might be thought. Many of the nations of
antiquity of whose laws we have knowledge, and nearly all the European
nations until within a comparatively recent time, punished women
differently from men for the same offenses. And as recently as the
period of the Early Puritan in New England women were punished for some
offenses which men might commit without fear if not without reproach.
The ducking-stool, for example, was an appliance for softening the
female temper only. In England women used to be burned at the stake for
crimes for which men were hanged, roasting being regarded as the milder
punishment. In point of fact, it was not punishment at all, the victim
being carefully strangled before the fire touched her. Burning was
simply a method of disposing of the body so expeditiously as to give
no occasion and opportunity for the unseemly social rites commonly
performed about the scaffold of the erring male by the jocular populace.
As lately as 1763 a woman named Margaret Biddingfield was burned in
Suffolk as an accomplice in the crime of "petty treason." She had
assisted in the murder of her husband, the actual killing being done by
a man; and he was hanged, as no doubt he richly deserved. For "coining,"
too (which was "treason"), men were hanged and women burned. This
distinction between the sexes was maintained until the year of grace
1790, after which female offenders ceased to have "a stake in the
country," and like Hood's martial hero, "enlisted in the line."
In still earlier days, before the advantages of fire were understood,
our good grandmothers who sinned were admonished by water--they were
drowned; but in the reign of Henry III a woman was hanged--without
strangulation, apparently, for after a whole day of it she was cut down
and pardoned. Sorceresses and unfaithful wives were smothered in mud, as
also were unfaithful wives among the ancient Burgundians. The punishment
of unfaithful husbands is not of record; we only know that there were
no austerely virtuous editors to direct the finger of public scorn their
way.
Among the Anglo-Saxons, women who had the bad luck to be detected in
theft were drowned, while men meeting with the same mischance died a dry
death by hanging. By the early Danish laws female thieves were buried
alive, whether or not from motives of humanity is not now known. This
seems to have been the fashion in France also, for in 1331 a woman named
Duplas was scourged and buried alive at Abbeville, and in 1460 Perotte
Mauger, a receiver of stolen goods, was inhumed by order of the Provost
of Paris in front of the public gibbet. In Germany in the good old
days certain kinds of female criminals were "impaled," a punishment too
grotesquely horrible for description, but likely enough considered by
the simple German of the period conspicuously merciful.
It is, in short, only recently that the civilized nations have placed
the sexes on an equality in the matter of the death penalty for crime,
and the new system is not yet by any means universal. That it is a
better system than the old, or would be if enforced, is a natural
presumption from human progress, out of which it is evolved. But
coincidently with its evolution has evolved also a sentiment adverse
to punishment of women at all. But this sentiment appears to be of
independent growth and in no way a reaction against that which caused
the change. To mitigate the severity of the death penalty for women to
some pleasant form of euthanasia, such as drowning in rose-water, or
in their case to abolish the death penalty altogether and make their
capital punishment consist in a brief interment in a jail with a
softened name, would probably do no good, for whatever form it might
take, it would be, so far as woman is concerned, the "extreme penalty"
and crowning disgrace, and jurors would be as reluctant to inflict it as
they now are to inflict hanging.