The Shadow On The Dial, and Other Essays by Ambrose Bierce (read this if txt) 📖

In courts of law to do the dirty work
That self-respecting scavengers would shirk.
What then? Who serves however clean a plan
By doing dirty work, he is a dirty man.


But in point of fact I do not "grant" any such thing. It is not for the public interest that a rogue have the same freedom of defense as an honest man; it should be a good deal harder for him. His troubles should begin, not when he seeks acquital, but when he seeks counsel. It would be better for the community if he could not obtain the services of a reputable attorney, or any attorney at all. A defense that can not be made without his attorney's actual knowledge of his guilt should be impossible to him. Nor should he be permitted to remain off the witness stand lest he incriminate himself. It ought to be the aim of the court to let him incriminate himself--to make him do so if his testimony will. In our courts that natural method would serve the ends of justice greatly better than the one that we have. Testimony of the guilty would assist in conviction; that of the innocent would not.

As to the general question of a judge's right to inflict arbitrary punishment for words that he may be pleased to hold disrespectful to himself or another judge, I do not myself believe that any such right exists; the practice seems to be merely a survival--a heritage from the dark days of irresponsible power, when the scope of judicial authority had no other bounds than fear of the royal gout or indigestion. If in these modern days the same right is to exist it may be necessary to revive the old checks upon it by restoring the throne. In freeing us from the monarchial chain, the coalition of European Powers commonly known in American history as "the valor of our forefathers" stripped us starker than they knew.

Suppose an attorney should find his client's interests imperiled by a prejudiced or corrupt judge--what is he to do? If he may not make representations to that effect, supporting them with evidence, where evidence is possible and by inference where it is not, what means of protection shall he venture to adopt? If it be urged in objection that judges are never prejudiced nor corrupt I confess that I shall have no answer: the proposition will deprive me of breath.

If contempt is not a crime it should not be punished; if a crime it should be punished as other crimes are punished--by indictment or information, trial by jury if a jury is demanded, with all the safeguards that secure an accused person against judicial blunders and judicial bias. The necessity for these safeguards is even greater in cases of contempt than in others--particularly if the prosecuting witness is to sit in judgment on his own grievance. That should, of course, not be permitted: the trial should take place before another judge.

Why should twelve able-bodied jurymen, with their oaths to guide them and the law to back, submit to the dictation of one small judge armed with nothing better than an insolent assumption of authority? A judge has not the moral right to order a jury to acquit, the utmost that he can rightly do is to point out what state of the law or facts may seem to him unfavorable to conviction. If the jurors, holding a different view, persist in conviction the accused will have grounds, doubtless, for a new trial. But under no circumstances is a judge justified in requiring a responsible human being to disregard the solemn obligation of an oath.

The public ear is dowered with rather more than just enough of clotted nonsense about "attacks upon the dignity of the Bench," "bringing the judiciary into disrepute" and the rueful rest of it. I crave leave to remind the solicitudinarians sounding these loud alarums on their several larynges that by persons of understanding men are respected, not for what they do, but for what they are, and that one public functionary will stand as high in their esteem as another if as high in character. The dignity of a wise and righteous judge needs not the artificial safeguarding which is a heritage of the old days when if dissent found a tongue the public executioner cut it out. The Bench will be sufficiently respected when it is no longer a place where dullards dream and rogues rob--when its _personnel_ is no longer chosen in the back-rooms of tipple-shops, forced upon yawning conventions and confirmed by the votes of men who neither know what the candidates are nor what they should be. With the gang that we have and under our system must continue to have, respect is out of the question and ought to be. They are entitled to just as much of its forms and observances as are needful to maintenance of order in their courts and fortification of their lawful power--no more. As to their silence under criticism, that is as they please. No body but themselves is holding their tongues.


II.


A law under which the unsuccessful respondent in a divorce proceeding may be forbidden to marry again during the life of the successful complainant, the latter being subject to no such disability, is infamous infinitely. If the disability is intended as a punishment it is exceptional among legal punishments in that it is inflicted without conviction, trial or arraignment, the divorce proceedings being quite another and different matter. It is exceptional in that the period of its continuance, and therefore the degree of its severity, are indeterminate; they are dependent on no limiting statute, and on neither the will of the power inflicting nor the conduct of the person suffering.

To sentence a person to a punishment that is to be mild or severe according to chance or--which is even worse--circumstance, which but one person, and that person not officially connected with administration of justice, can but partly control, is a monstrous perversion of the main principles that are supposed to underlie the laws.

In "the case at bar" it can be nothing to the woman--possibly herself remarried--whether the man remarries or not; that is, can affect only her feelings, and only such of them as are least creditable to her. Yet her self-interest is enlisted against him to do him incessant disservice. By merely caring for her health she increases the sharpness of his punishment--for punishment it is if he feels it such; every hour that she wrests from death is added to his "term." The expediency of preventing a man from marrying, without having the power to prevent him from making his marriage desirable in the interest of the public and vital to that of some woman, is not discussable here. If a man is ever justified in poisoning a woman who is no longer his wife it is when, by way of making him miserable, the State has given him, or he supposes it to have given him, a direct and distinct interest in her death.


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.


IV.


Testators should not, from the snug security of the grave, utter a perpetual threat of disinheritance or any