Chapter VII: 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.