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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.
As the reader is already aware, the value of all honestly given testimony depends first upon the witness's original capacity to observe the facts; second upon his ability to remember what he has seen and not to confuse knowledge with imagination, belief or custom, and lastly, upon his power to express what he has, in fact, seen and remembers.
Women do not differ from men in their original capacity to observe, which is a quality developed by the training and environment of the individual. It is in the second class of the witness's limitations that women as a whole are more likely to trip than men, for they are prone to swear to circumstances as facts, of their own knowledge, simply because they confuse what they have really observed with what they believe did occur or should have occurred, or with what they are convinced did happen simply because it was accustomed to happen in the past.
Perhaps the best illustration of the female habit of swearing that facts occurred because they usually occurred, was exhibited in the Twitchell murder trial in Philadelphia, cited in Wellman's "Art of Cross-Examination." The defendant had killed his wife with a blackjack, and having dragged her body into the back yard, carefully unbolted the gate leading to the adjacent alley and, retiring to the house, went to bed. His purpose was to create the impression that she had been murdered by some one from outside the premises. To carry out the suggestion, he bent a poker and left it lying near the body smeared with blood. In the morning the servant girl found her mistress and ran shrieking into the street.
At the trial she swore positively that she was first obliged to unbolt the door in order to get out. Nothing could shake her testimony, and she thus unconsciously negatived the entire value of the defendant's adroit precautions. He was justly convicted, although upon absolutely erroneous testimony.
The old English lawyers occasionally rejected the evidence of women on the ground that they are "frail." But the exclusion of women as witnesses in the old days was not for psychological reasons, nor did it originate from a critical study of the probative value of their testimony.
Though the conclusions to which women frequently jump may usually be shown by careful interrogation to be founded upon observation of actual fact, their habit of stating inferences often leads them to claim knowledge of the impossible--"wiser in [their] own conceit than seven men that can render a reason."
In a very recent case where a clever thief had been convicted of looting various apartments in New York City of over eighty thousand dollars' worth of jewelry, the female owners were summoned to identify their property. The writer believes that in every instance these ladies were absolutely ingenuous and intended to tell the absolute truth. Each and every one positively identified various of the loose stones found in the possession of the prisoner as her own. This was the case even when the diamonds, emeralds and pearls had no distinguishing marks at all. It was a human impossibility actually to identify any such objects, and yet these eminently respectable and intelligent gentlewomen swore positively that they could recognize their jewels. They drew the inference merely that as the prisoner had stolen similar jewels from them these must be the actual ones which they had lost, an inference very likely correct, but valueless in a tribunal of justice.
Where their inferences are questioned, women, as a rule, are much more ready to "swear their testimony through" than men. They are so accustomed to act upon inference that, finding themselves unable to substantiate their assertion by any sufficient reason, they become irritated, "show fight," and seek refuge in prevarication. Had they not, during their entire lives, been accustomed to mental short-cuts, they would be spared the humiliation of seeing their evidence "stricken from the record."
One of the ladies referred to testified as follows:
"Can you identify that diamond?"
"I am quite sure that it is mine:"
"How do you know?"
"It looks exactly like it."
"But may it not be a similar one and not your own?"
"No; it is mine."
"But how? It has no marks."
"I don't care. I know it is mine. I SWEAR IT IS!"
The good lady supposed that, unless she swore to the fact, she might lose her jewel, which was, of course, not the case at all, as the sworn testimony founded upon nothing but inference left her in no better position than she was in before.
The writer regrets to say that observation would lead him to believe that women as a rule have somewhat less regard for the spirit of their oaths than men, and that they are more ready, if it be necessary, to commit perjury. This may arise from the fact that women are fully aware that their sex protects them from the same severity of cross-examination to which men would be subjected under similar circumstances. It is today fatal to a lawyer's case if he be not invariably gentle and courteous with a female witness, and this is true even if she be a veritable Sapphira.
In spite of these limitations, which, of course, affect the testimony of almost every person, irrespective of sex, women, with the possible exception of children, make the most remarkable witnesses to be found in the courts. They are almost invariably quick and positive in their answers, keenly alive to the dramatic possibilities of the situation, and with an unerring instinct for a trap or compromising admission.
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