Crime and Punishment in American History - Lawrence M. Friedman [141]
This cautionary tale was not unique. In a Michigan case in 1888, Kate Morrow, of Shiawasee County, accused William Gould of “seducing and debauching her.” On the day scheduled for trial, Gould married Kate during the court’s lunchtime recess before a justice of the peace. But at seven o’clock that evening, he took “the east-bound train for Port Huron,” deserting his wife. Gould was caught, arrested, tried, and convicted. But his conviction was reversed on appeal: the marriage, fleeting and loveless though it might have been, was enough to remove the criminal taint from Gould.40
These public soap operas, and the law behind them, told an important moral story. They also reflected an image of the respectable woman. She was pure, chaste, delicate, a precious flower to be protected from the buffeting of a rude and masculine world, a tropical bird in a silver cage. Society, through its legal system, had taken on the duty of protecting her honor and her sensibilities. Virtue and chastity were pearls of inestimable value.
These themes ran particularly deep in the legislation of the southern states. It was an offense under the law of Alabama to use “abusive, insulting, or obscene language” in the “presence or hearing of any female,” or to “wilfully disturb” any women “at a public assembly, met for instruction or recreation, or in a railroad car, steamboat, or in any other public conveyance, or at a depot [or] landing” by “rude or indecent behavior, or by profane or obscene language.”41 Indeed, in Alabama the high court upheld the conviction of a man named Weaver, who, when asked to get out of his ex-wife’s home, flashed back, in a rude and angry voice, “I’ll go when I God damn please.”42
Dillard v. Georgia (1870) was a more telling case.43 The accused, James T. Dillard, asked Mary S. Sanders (a married woman) to “go to bed” with him. He was fined one hundred dollars. An appeals court upheld his conviction. The statute “is intended to protect females from insult.” And what “higher insult to a virtuous woman can be conceived of than the language used in this case”? The statute also had another function. Friends and relatives of a woman who had been “unlawfully shocked, or whose feelings have been wounded” would feel an almost instinctual urge to avenge her honor: the law gave them a nonviolent alternative.
The Unwritten Law
The violent alternative was also possible. Adultery and seduction were evils, and the wages of these sins were ruination and, very possibly, death. Adultery and seduction were also, of course, highly attractive. The popular press, especially the lower levels of it, fed the public stories of seduction, elopement, and attempted rape; also murders and assaults with themes of sexual jealousy and revenge. The National Police Gazette, from the mid-1840s on, was a potent vehicle for such stories—stronger stuff than usually appeared in print, told luridly with pictures and a thinly disguised prurient leer. A typical headline (from 1878) read as follows: TERRIBLE TALE. ILLICIT LOVE AND ITS DIREFUL CONSEQUENCES.... A HUSBAND’S JEALOUSY.... MURDER OF HIS WIFE AND HER PARAMOUR.”44
The so-called “unwritten law” decreed that a man had the right to avenge the sexual dishonor of a wife, mother, daughter, or sister. It is hard to pin a starting date onto so elusive an object as an “unwritten law,” but this one apparently crept into criminal practice around 1840. The notorious trial of Congressman Daniel Sickles in 1859 for killing Philip Barton Key gave it a dramatic push forward. Key was the lover of Sickles’s young wife. A jury acquitted Sickles, and the unwritten law was undoubtedly the primary reason.45
In the later years of the century, dozens of men were acquitted in more or less similar cases. Their lawyers used various legal approaches: self-defense, temporary insanity, and other dodges, but the real defense,