Crime and Punishment in American History - Lawrence M. Friedman [142]
The unwritten law was thus a law for men only, on the whole. Women were not supposed to avenge themselves on husbands, kill mistresses, or that sort of thing. What a woman’s husband did behind her back (or even flagrantly) did not destroy her sense of personal honor. She was supposed to grin and bear it. It was only when her own sexual virtue was at stake that violence might possibly be in order. Most women who killed former lovers were, in fact, convicted.47 Kate Southern, a Georgia wife, stabbed her husband’s mistress to death; she was convicted and sentenced to death.48 By way of contrast, a different fate was in store for an “intelligent-looking young lady” who turned herself in to the Boston police in 1858. Her “suitor” had made her “a solemn promise of marriage, had accomplished her ruin,” and then, in her “misfortune” (that is, her pregnancy), abandoned her. Desperate, she made ready a “double-barrelled pistol,” loaded both barrels (his and hers), and shot him. She succeeded only in wounding him. On these facts, the grand jury refused to indict. The poor girl was discharged, taking refuge under the roof of her “kind father,” while the villainous lover carried in his body a “leaden memento of his perfidy.”49
The women who were “protected” by seduction laws, and whose honor was the subject of the unwritten law, were white and middle class. They were not chattels; nobody could “own” them. But the laws against insulting or victimizing these women did carry a whiff of the property idea about them. Such an odor, almost overpowering, rises from the words of a Texas law that made homicide “justifiable” if a husband killed someone caught red-handed (so to speak) “in the act of adultery with the wife.”50 This statute stayed on the books in Texas until the 1970s.51
Domestic Violence
The odor of property is also strong in the laws relating to wife-beating. Aggravated assault was a crime in every state, but wife-beating was taken much less seriously. Judges, particularly in the first half of the nineteenth century, tended to think of this as a mere personal or domestic matter. The law should stay out, so long as the beating was “moderate,” that is, only a matter of discipline, something more or less on a par with “correcting” a child.52 A writer in 1838 suggested, somewhat facetiously, that “the punishment of death” ought to be meted out “for all persons who interfered in the quarrels of man and wife. Experience, that tutor of us all, has taught us, that judges, jurors, and other officers of the court, are the only sufferers from such accusations.”53 Ball Fenner, writing about the Boston courts around 1850, noted that a “brute in human form” who undertook to “chastise a vicious horse” would end up in prison, but, he added, not “one out of a hundred” of the men who abused or beat their wives (unless the “brute”maimed or blinded her) was made to answer for his crime; and if he was, in fact, brought to court, “he is sure of getting off by the payment of a small fine,” say, three dollars and costs.54
In the course of the century, there was a certain shift in doctrine. In the later years, courts were less likely to laugh the matter off or find excuses for wife-beating. Ultimately, a number of states passed statutes that made wife-beating a crime.55 The old attitudes seemed barbarous; this sense was perhaps connected to the growing revulsion against punishing the body, which was a strong aspect of nineteenth-century law reform. (See chapter 3.) Paradoxically, however, some people in the anti-wife-beating movement voiced a demand to bring back the whipping post. Perhaps the crime seemed primitive—the punishment should be equally primitive. At any rate, Nevada passed a law in 1877 that ordered every county to erect