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III.

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.