Courts and Criminals

by Arthur Cheney Train

CHAPTER VII. Women in the Courts

AS WITNESSES

Women appear in the criminal courts constantly as witnesses, although less frequently as complainants and defendants. As complainants are always witnesses, and as defendants may, and in point of fact generally do become so, whatever generalizations are possible regarding women in courts of law can most easily be drawn from their characteristics as givers of testimony. Roughly speaking, women exhibit about the same idiosyncrasies and limitations in the witness-chair as the opposite sex, and at first thought one would be apt to say that it would be fruitless and absurd to attempt to predicate any general principles in regard to their testimony, but a careful study of female witnesses as a whole will result in the inevitable conclusion that their evidence has virtues and limitations peculiar to itself.

The ancient theory that woman was man's inferior showed itself in the tendency to reject, or at least to regard with suspicion, her evidence in legal matters.

"The following law," says W. M. Best, "is attributed to Moses by Josephus: 'Let the testimony of women not be received on account of the levity and audacity of their sex'; a law which looks apocryphal, but which, even if genuine, could not have been of universal application.... The law of ancient Rome, though admitting their testimony in general, refused it in certain cases. The civil canon laws of mediaeval Europe seem to have carried the exclusion much further. Mascardus says: 'Feminis plerumque omnino non creditur, et id dumtaxat, quod sunt feminae qua ut plurimum solent esse fraudulentre fallaces, et dolosae' [Generally speaking, no credence at all is given to women, and for this reason, because they are women, who are usually deceitful, untruthful, and treacherous in the very highest degree.] And Lancelottus, in his 'Institutiones Juris Canonici,' lays it down in the most distinct terms, that women cannot in general be witnesses, citing the language of Virgil: 'Varium et mutabile semper femina'....

"Bruneau, although a contemporary of Madame de Sevigne, did not scruple to write, in 1686, that the deposition of three women was only equal to that of two men. At Berne, so late as 1821, in the Canton of Vaud, so late as 1824, the testimony of two women was required to counterbalance that of one man.... A virgin was entitled to greater credit than a widow.... In the 'Canonical Institutions of Devotus,' published at Paris in 1852, it is distinctly stated that, except in a few peculiar instances, women are not competent witnesses in criminal cases. In Scotland also, until the beginning of the eighteenth century, sex was a cause of exclusion from the witness-box in the great majority of instances."

Cockburn in his Memoirs tells of an incident during the trial of Glengarry, in Scotland, for murder in a duel, which is, perhaps, explicable by this extraordinary attitude: A lady of great beauty was called as a witness and came into court heavily veiled. Before administering the oath, Lord Eskgrove, the judge (to whom this function belongs in Scotland), gave her this exposition of her duty:

"Young woman, you will now consider yourself as in the presence of Almighty God and of this High Court. Lift up your veil, throw off all your modesty, and look me in the face."

Whatever difference does exist in character between the testimony of men and women has its root in the generally recognized diversity in the mental processes of the two sexes. Men, it is commonly declared, rely upon their powers of reason; women upon their intuition. Not that the former is frequently any more accurate than the latter. But our courts of law (at least those in English-speaking countries) are devised and organized, perhaps unfortunately, on the principle that testimony not apparently deduced by the syllogistic method from the observation of relevant fact is valueless, and hence woman at the very outset is placed at a disadvantage and her usefulness as a probative force sadly crippled.

The good old lady who takes the witness-chair and swears that she knows the prisoner took her purse has perhaps quite as good a basis for her opinion and her testimony (even though she cannot give a single reason for her belief and becomes hopelessly confused on cross-examination) as the man who reaches the same conclusion ostensibly by virtue of having seen the defendant near by, observed his hand reaching for the purse, and then perceived him take to his heels. She has never been taught to reason and has really never found it necessary, having wandered through life by inference or, more frankly, by guesswork, until she is no longer able to point out the simplest stages of her most ordinary mental processes.