With a view, possibly, to promoting respect for law by making the
statutes so to conform to public sentiment that none will fall into
dis-esteem and disuse, it has been proposed that there be 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. 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 popularly 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 a jocular
populace. As lately as 1763 a woman named Margaret Biddingfield was
burned in Suffolk, England, as an accomplice in the crime of “petty
treason.” She had assisted in the murder of one of the king’s subjects
(her husband), the actual killing being done by a man; and he was
hanged, as no doubt he deserved to be. For “coining,” too (which, also,
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 scorn
to their dark misdeeds and personal unworth.
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 developed also a sentiment
adverse to punishment of women at all. This sentiment appears to be
of independent growth; 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 internment 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 death.