What the effect was of their exemption from this considerable inconvenience we have not the data to conjecture, unless we understand as an allusion to it some otherwise obscure words of the famous Edward Bok, the only writer of the period whose work has survived. In his monumental essay on barbarous penology, entitled “Slapping the Wrist,” he couples “woman’s emancipation from the trammels of law” and “man’s better prospect of death” in a way that some have construed as meaning that he regarded them as cause and effect. It must be said, however, that this interpretation finds no support in the general character of his writing, which is exceedingly humane, refined and womanly.
It has been said that the writings of this great man are the only surviving work of his period, but of that we are not altogether sure.
There exists a fragment of an anonymous essay on woman’s legal responsibility which many Americologists think belongs to the beginning of the twentieth century. Certainly it could not have been written later than the middle of it, for at that time woman had been definitely released from any responsibility to any law but that of her own will. The essay is an argument against even such imperfect exemption as she had in its author’s time.
“It has been urged,” the writer says, “that women, being less rational and more emotional than men, should not be held accountable in the same degree. To this it may be answered that punishment for crime is not intended to be retaliatory, but admonitory and deterrent. It is, therefore, peculiarly necessary to those not easily reached by other forms of warning and dissuasion. Control of the wayward is not to be sought in reduction of restraints, but in their multiplication. One who cannot be curbed by reason may be curbed by fear, a familiar truth which lies at the foundation of all penological systems. The argument for exemption of women is equally cogent for exemption of habitual criminals, for they too are abnormally inaccessible to reason, abnormally disposed to obedience to the suasion of their unregulated impulses and passions. To free them from the restraints of the fear of punishment would be a bold innovation which has as yet found no respectable proponent outside their own class.
“Very recently this dangerous enlargement of the meaning of the phrase ‘emancipation of woman’ has been fortified with a strange advocacy by the female ‘champions of their sex.’ Their argument runs this way: ‘We are denied a voice in the making of the laws relating to infliction of the death penalty; it is unjust to hold us to an accountability to which we have not assented.’ Of course this argument is as broad as the entire body of law; it amounts to nothing less than a demand for general immunity from all laws, for to none of them has woman’s assent been asked or given. But let us consider this amazing claim with reference only to the proposal in the service and promotion of which it is now urged: exemption of women from the death penalty for murder. In the last analysis it is seen to be a simple demand for compensation. It says: ‘You owe us a solatium. Since you deny us the right to vote, you should give us the right to assassinate. We do not appraise it at so high a valuation as the other franchise, but we do value it.’
“Apparently they do: without legal, but with virtual, immunity from punishment, the women of this country take an average of one thousand lives annually, nine in ten being the lives of men. Juries of men, incited and sustained by public opinion, have actually deprived every adult male American of the right to live. If the death of any man is desired by any woman for any reason he is without protection. She has only to kill him and say that he wronged or insulted her. Certain almost incredible recent instances prove that no woman is too base for immunity, no crime against life sufficiently rich in all the elements of depravity to compel a conviction of the assassin, or, if she is convicted and sentenced, her punishment by the public executioner.”
In this interesting fragment, quoted by Bogul in his “History of an Extinct Civilization,” we learn something of the shame and peril of American citizenship under institutions which, not having run their foreordained course to the unhappy end, were still in some degree supportable. What these institutions became afterward is a familiar story.
It is true that the law of trial by jury was repealed. It had broken down, but not until it had sapped the whole nation’s respect for all law, for all forms of authority, for order and private virtues. The people whose rude forefathers in another land it had served roughly to protect against their tyrants, it had lamentably failed to protect against themselves, and when in madness they swept it away, it was not as one renouncing an error, but as one impatient of the truth which the error is still believed to contain. They flung it away, not as an ineffectual restraint, but as a restraint; not because it was no longer an instrument of justice for the determination of truth, but because they feared that it might again become such. In brief, trial by jury was abolished only when it had provoked anarchy.
Before turning to another phase of this ancient civilization I cannot forbear to relate, after the learned and ingenious Gunkux, the only known instance of a public irony expressing itself in the sculptor’s noble art.
In the ancient city of Hohokus once stood a monument of colossal size and impressive dignity. It was erected by public subscription to the memory of a man whose only distinction consisted in a single term of service as a juror in a famous murder trial, the details of which have not come down to us. This occupied the court and held public attention for many weeks, being bitterly contested by both prosecution and defense. When at last it was given to the jury by the judge in the most celebrated charge that had ever been delivered from the bench, a ballot was taken at once. The jury stood eleven for acquittal to one for conviction. And so it stood at every ballot of the more than fifty that were taken during the fortnight that the jury was locked up for deliberation. Moreover, the dissenting juror would not argue the matter; he would listen with patient attention while his eleven indignant opponents thundered their opinions into his ears, even when they supported them with threats of personal violence; but not a word would he say. At last a disagreement was formally entered, the jury discharged and the obstinate juror chased from the city by the maddened populace. Despairing of success in another trial and privately admitting his belief in the prisoner’s innocence, the public prosecutor moved for his release, which the judge ordered with remarks plainly implying his own belief that the wrong man had been tried.
Years afterward the accused person died confessing his guilt, and a little later one of the jurors who had been sworn to try the case admitted that he had attended the trial on the first day only, having been personated during the rest of the proceedings by a twin brother, the obstinate member, who was a deaf-mute.
The monument to this eminent public servant was overthrown and destroyed by an earthquake in the year 2342.
One of the causes of that popular discontent which brought about the stupendous events resulting in the disruption of the great republic, historians and archaeologists are agreed in reckoning “insurance.” Of the exact nature of that factor in the problem of the national life of that distant day we are imperfectly informed; many of its details have perished from the record, yet its outlines loom large through the mist of ages and can be traced with greater precision than is possible in many more important matters.