It has been said that the writings of this great man are the only surviving work of his period, but of that we are not altogether sure. There exists a fragment of an anonymous essay on woman’s legal responsibility which many Americologists think belongs to the beginning of the twentieth century. Certainly it could not have been written later than the middle of it, for at that time woman had been definitely released from any responsibility to any law but that of her own will. The essay is an argument against even such imperfect exemption as she had in its author’s time.
“It has been urged,” the writer says, “that women, being less rational and more emotional than men, should not be held accountable in the same degree. To this it may be answered that punishment for crime is not intended to be retaliatory, but admonitory and deterrent. It is, therefore, peculiarly necessary to those not easily reached by other forms of warning and dissuasion. Control of the wayward is not to be sought in reduction of restraints, but in their multiplication. One who cannot be curbed by reason may be curbed by fear, a familiar truth which lies at the foundation of all penological systems. The argument for exemption of women is equally cogent for exemption of habitual criminals, for they too are abnormally inaccessible to reason, abnormally disposed to obedience to the suasion of their unregulated impulses and passions. To free them from the restraints of the fear of punishment would be a bold innovation which has as yet found no respectable proponent outside their own class.
“Very recently this dangerous enlargement of the meaning of the phrase ‘emancipation of woman’ has been fortified with a strange advocacy by the female ‘champions of their sex.’ Their argument runs this way: ‘We are denied a voice in the making of the laws relating to infliction of the death penalty; it is unjust to hold us to an accountability to which we have not assented.’ Of course this argument is as broad as the entire body of law; it amounts to nothing less than a demand for general immunity from all laws, for to none of them has woman’s assent been asked or given. But let us consider this amazing claim with reference only to the proposal in the service and promotion of which it is now urged: exemption of women from the death penalty for murder. In the last analysis it is seen to be a simple demand for compensation. It says: ‘You owe us a solatium. Since you deny us the right to vote, you should give us the right to assassinate. We do not appraise it at so high a valuation as the other franchise, but we do value it.’
“Apparently they do: without legal, but with virtual, immunity from punishment, the women of this country take an average of one thousand lives annually, nine in ten being the lives of men. Juries of men, incited and sustained by public opinion, have actually deprived every adult male American of the right to live. If the death of any man is desired by any woman for any reason he is without protection. She has only to kill him and say that he wronged or insulted her. Certain almost incredible recent instances prove that no woman is too base for immunity, no crime against life sufficiently rich in all the elements of depravity to compel a conviction of the assassin, or, if she is convicted and sentenced, her punishment by the public executioner.”
In this interesting fragment, quoted by Bogul in his “History of an Extinct Civilization,” we learn something of the shame and peril of American citizenship under institutions which, not having run their foreordained course to the unhappy end, were still in some degree supportable. What these institutions became afterward is a familiar story. It is true that the law of trial by jury was repealed. It had broken down, but not until it had sapped the whole nation’s respect for all law, for all forms of authority, for order and private virtues. The people whose rude forefathers in another land it had served roughly to protect against their tyrants, it had lamentably failed to protect against themselves, and when in madness they swept it away, it was not as one renouncing an error, but as one impatient of the truth which the error is still believed to contain. They flung it away, not as an ineffectual restraint, but as a restraint; not because it was no longer an instrument of justice for the determination of truth, but because they feared that it might again become such. In brief, trial by jury was abolished only when it had provoked anarchy.
Before turning to another phase of this ancient civilization I cannot forbear to relate, after the learned and ingenious Gunkux, the only known instance of a public irony expressing itself in the sculptor’s noble art. In the ancient city of Hohokus once stood a monument of colossal size and impressive dignity. It was erected by public subscription to the memory of a man whose only distinction consisted in a single term of service as a juror in a famous murder trial, the details of which have not come down to us. This occupied the court and held public attention for many weeks, being bitterly contested by both prosecution and defense. When at last it was given to the jury by the judge in the most celebrated charge that had ever been delivered from the bench, a ballot was taken at once. The jury stood eleven for acquittal to one for conviction. And so it stood at every ballot of the more than fifty that were taken during the fortnight that the jury was locked up for deliberation. Moreover, the dissenting juror would not argue the matter; he would listen with patient attention while his eleven indignant opponents thundered their opinions into his ears, even when they supported them with threats of personal violence; but not a word would he say. At last a disagreement was formally entered, the jury discharged and the obstinate juror chased from the city by the maddened populace. Despairing of success in another trial and privately admitting his belief in the prisoner’s innocence, the public prosecutor moved for his release, which the judge ordered with remarks plainly implying his own belief that the wrong man had been tried.
Years afterward the accused person died confessing his guilt, and a little later one of the jurors who had been sworn to try the case admitted that he had attended the trial on the first day only, having been personated during the rest of the proceedings by a twin brother, the obstinate member, who was a deaf-mute.
The monument to this eminent public servant was overthrown and destroyed by an earthquake in the year 2342.
One of the causes of that popular discontent which brought about the stupendous events resulting in the disruption of the great republic, historians and archæologists are agreed in reckoning “insurance.” Of the exact nature of that factor in the problem of the national life of that distant day we are imperfectly informed; many of its details have perished from the record, yet its outlines loom large through the mist of ages and can be traced with greater precision than is possible in many more important matters.
In the monumental work of Professor Golunk-Dorsto (“Some Account of the Insurance Delusion in Ancient America”) we have its most considerable modern exposition; and Gakler’s well-known volume, “The Follies of Antiquity,” contains much interesting matter relating to it. From these and other sources the student of human unreason can reconstruct that astounding fallacy of insurance as, from three joints of its tail, the great naturalist Bogramus restored the ancient elephant, from hoof to horn.
The game of insurance, as practiced by the ancient Americans (and, as Gakler conjectures, by some of the tribesmen of Europe), was gambling, pure and simple, despite the sentimental character that its proponents sought to impress upon some forms of it for the greater prosperity of their dealings with its dupes. Essentially, it was a bet between the insurer and the insured. The number of ways in which the wager was made—all devised by the insurer—was almost infinite, but in none of them was there a departure from the intrinsic nature of the transaction as seen in its simplest, frankest form, which we shall here expound.
To those unlearned in the economical institutions of antiquity it is necessary to explain that in ancient America, long prior to the disastrous Japanese war, individual ownership of property was unrestricted; every person was permitted to get as much as he was able, and to hold it as his own without regard to his needs, or whether he made any good use of it or not. By some plan of distribution not now understood even the habitable surface of the earth, w
ith the minerals beneath, was parceled out among the favored few, and there was really no place except at sea where children of the others could lawfully be born. Upon a part of the dry land that he had been able to acquire, or had leased from another for the purpose, a man would build a house worth, say, ten thousand drusoes. (The ancient unit of value was the “dollar,” but nothing is now known as to its actual worth.) Long before the building was complete the owner was beset by “touts” and “cappers” of the insurance game, who poured into his ears the most ingenious expositions of the advantages of betting that it would burn down—for with incredible fatuity the people of that time continued, generation after generation, to build inflammable habitations. The persons whom the capper represented—they called themselves an “insurance company”—stood ready to accept the bet, a fact which seems to have generated no suspicion in the mind of the house-owner. Theoretically, of course, if the house did burn payment of the wager would partly or wholly recoup the winner of the bet for the loss of his house, but in fact the result of the transaction was commonly very different. For the privilege of betting that his property would be destroyed by fire the owner had to pay to the gentleman betting that it would not be, a certain percentage of its value every year, called a “premium.” The amount of this was determined by the company, which employed statisticians and actuaries to fix it at such a sum that, according to the law of probabilities, long before the house was “due to burn,” the company would have received more than the value of it in premiums. In other words, the owner of the house would himself supply the money to pay his bet, and a good deal more.
But how, it may be asked, could the company’s actuary know that the man’s house would last until he had paid in more than its insured value in premiums—more, that is to say, than the company would have to pay back? He could not, but from his statistics he could know how many houses in ten thousand of that kind burned in their first year, how many in their second, their third, and so on. That was all that he needed to know, the house-owners knowing nothing about it. He fixed his rates according to the facts, and the occasional loss of a bet in an individual instance did not affect the certainty of a general winning. Like other professional gamblers, the company expected to lose sometimes, yet knew that in the long run it must win; which meant that in any special case it would probably win. With a thousand gambling games open to him in which the chances were equal, the infatuated dupe chose to “sit into” one where they were against him! Deceived by the cappers’ fairy tales, dazed by the complex and incomprehensible “calculations” put forth for his undoing, and having ever in the ear of his imagination the crackle and roar of the impoverishing flames, he grasped at the hope of beating—in an unwelcome way, it is true—“the man that kept the table.” He must have known for a certainty that if the company could afford to insure him he could not afford to let it. He must have known that the whole body of the insured paid to the insurers more than the insurers paid to them; otherwise the business could not have been conducted. This they cheerfully admitted; indeed, they proudly affirmed it. In fact, insurance companies were the only professional gamblers that had the incredible hardihood to parade their enormous winnings as an inducement to play against their game. These winnings (“assets,” they called them) proved their ability, they said, to pay when they lost; and that was indubitably true. What they did not prove, unfortunately, was the will to pay, which from the imperfect court records of the period that have come down to us, appears frequently to have been lacking. Gakler relates that in the instance of the city of San Francisco (somewhat doubtfully identified by Macronus as the modern fishing-village of Gharoo) the disinclination of the insurance companies to pay their bets had the most momentous consequences.
In the year 1906 San Francisco was totally destroyed by fire. The conflagration was caused by the friction of a pig scratching itself against an angle of a wooden building. More than one hundred thousand persons perished, and the loss of property is estimated by Kobo-Dogarque at one and a half million drusoes. On more than two-thirds of this enormous sum the insurance companies had laid bets, and the greater part of it they refused to pay. In justification they pointed out that the deed performed by the pig was “an act of God,” who in the analogous instance of the express companies had been specifically forbidden to take any action affecting the interests of parties to a contract, or the result of an agreed undertaking.
In the ensuing litigation their attorneys cited two notable precedents. A few years before the San Francisco disaster, another American city had experienced a similar one through the upsetting of a lamp by the kick of a cow. In that case, also, the insurance companies had successfully denied their liability on the ground that the cow, manifestly incited by some supernatural power, had unlawfully influenced the result of a wager to which she was not a party. The companies defendant had contended that the recourse of the property-owners was against, not them, but the owner of the cow. In his decision sustaining that view and dismissing the case, a learned judge (afterward president of one of the defendant companies) had in the legal phraseology of the period pronounced the action of the cow an obvious and flagrant instance of unwarrantable intervention. Kobo-Dogarque believes that this decision was afterward reversed by an appellate court of contrary political complexion and the companies were compelled to compromise, but of this there is no record. It is certain that in the San Francisco case the precedent was urged.
Another precedent which the companies cited with particular emphasis related to an unfortunate occurrence at a famous millionaires’ club in London, the capital of the renowned king, John Bul. A gentleman passing in the street fell in a fit and was carried into the club in convulsions. Two members promptly made a bet upon his life. A physician who chanced to be present set to work upon the patient, when one of the members who had laid the wager came forward and restrained him, saying: “Sir, I beg that you will attend to your own business. I have my money on that fit.”
Doubtless these two notable precedents did not constitute the entire case of the defendants in the San Francisco insurance litigation, but the additional pleas are lost to us.
Of the many forms of gambling known as insurance that called life insurance appears to have been the most vicious. In essence it was the same as fire insurance, marine insurance, accident insurance and so forth, with an added offensiveness in that it was a betting on human lives—commonly by the policyholder on lives that should have been held most sacred and altogether immune from the taint of traffic. In point of practical operation this ghastly business was characterized by a more fierce and flagrant dishonesty than any of its kindred pursuits. To such lengths of robbery did the managers go that at last the patience of the public was exhausted and a comparatively trivial occurrence fired the combustible elements of popular indignation to a white heat in which the entire insurance business of the country was burned out of existence, together with all the gamblers who had invented and conducted it. The president of one of the companies was walking one morning in a street of New York, when he had the bad luck to step on the tail of a dog and was bitten in retaliation. Frenzied by the pain of the wound, he gave the creature a savage kick and it ran howling toward a group of idlers in front of a grocery store. In ancient America the dog was a sacred animal, worshiped by all sorts and conditions of tribesmen. The idlers at once raised a great cry, and setting upon the offender beat him so that he died.
Their act was infectious: men, women and children trooped out of their dwellings by thousands to join them, brandishing whatever weapons they could snatch, and uttering wild cries of vengeance. This formidable mob overpowered the police, and marching from one insurance office to another, successively demolished them all, slew such officers as they could lay hands on, and chased the fugitive survivors into the sea, “where,” says a quaint chronicle of the time, “they were eaten by their kindred, the sharks.” This carnival of violence continued all the day, and at set of sun not one person connected with any form of insurance
remained alive.
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