Common scold

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Punishing a common scold in the ducking stool

In the common law of crime in England a common scold was a species of public nuisance — a troublesome and angry woman who broke the public peace by habitually arguing and quarrelling with her neighbours. The Latin name for the offender, communis rixatrix, appears in the feminine gender, and makes it clear that only women could commit this crime.

1 The offence and its punishment
2 Historical prosecutions
3 Current status of the law
4 External links

[edit] The offence and its punishment

In the Commentaries on the Laws of England, Blackstone says of this offence:

Lastly, a common scold, communis rixatrix, (for our law-latin confines it to the feminine gender) is a public nuisance to her neighbourhood. For which offence she may be indicted; and, if convicted, shall be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking stool, which in the Saxon language signifies the scolding stool; though now it is frequently corrupted into ducking stool, because the residue of the judgement is, that, when she is so placed therein, she shall be plunged in the water for her punishment. (Bl. Comm. IV:13.5.8, p. *169)

The prescribed penalty for this offence involved dunking the convicted offender in water in an instrument called the "cucking stool". The cucking stool, according to Blackstone, eventually became known as a ducking stool by folk etymology. The stool consisted of a chair that was suspended over a body of water into which the prisoner was strapped and dunked into the water for her punishment.

Other writers disagree with Blackstone's assertion equating the two sorts of punishment seat. The Domesday Book notes the use of a cucking stool at Chester, a seat also known as cathedra stercoris, a "dung chair", whose punishment apparently involved exposing the sitter's buttocks to onlookers. This seat served to punish not only scolds, but also brewers and bakers who sold bad ale or bread, whereas the ducking stool dunked its victim into the water.

A scold's bridle or brank consists of a locking metal mask or head cage that contains a tab that fits in the mouth to inhibit talking. Some have claimed that convicted common scolds had to wear such a device as a preventive measure. However, legal sources do not mention them in the context of the punishment of common scolds.

[edit] Historical prosecutions

A plaque on the Fye Bridge in Norwich, England claims to mark the site of a "cucking" stool, and that from 1562–1597 "strumpets" and common scolds suffered the punishment of dunking there. In the Percy Anecdotes, actually published pseudonymously in 1820, the author states that "How long the ducking-stool has been in disuse in England does not appear." [1] The Anecdotes also suggest penological ineffectiveness as grounds for the stool's disuse; the text relates the 1681 case of a Mrs. Finch, who according to this account had received three convictions and dunkings as a common scold. On her fourth conviction, the King's Bench declined to dunk her again, and instead ordered her to pay a fine of three marks, and ordered her imprisoned until payment took place.

The Percy miscellany also quotes a pastoral poem by John Gay (1685–1732), who wrote that:

I'll speed me to the pond, where the high stool

On the long plank, hangs o'er the muddy pool,

That stool the dread of ev'ry scolding quean.

and also a 1780 poem by Benjamin West, who wrote that:

There stands, my friend, in yonder pool,

An engine call'd a ducking-stool;

By legal pow'r commanded down,

The joy and terror of the town.

If jarring females kindle strife. . .

While these literary sources do not prove that the punishment still took place they do provide evidence that it had not been forgotten.

In The Queen v. Foxby, 6 Mod. 11 (1704), counsel for the accused stated that he knew of no law for the dunking of scolds. Lord Chief Justice John Holt of the Queen's Bench apparently pronounced this error, for he announced that it was "better ducking in a Trinity, than a Michaelmas term", i.e. better carried out in summer than in winter. The tenor of Holt's remarks however suggests that he found the punishment an antiquarian curiosity and something of a joke. The last recorded uses of the ducking stool involve a Mrs. Ganble at Plymouth (1808); Jenny Pipes, a notorious scold (1809), and Sarah Leeke (1817), both of Leominster. In the last case, the water in the pond stood so low that the authorities merely wheeled the offender round the town in the chair, so it may not count.

The English Common law as received by the law of the United States included the offence of being a common scold. In 1829, a Philadelphia, Pennsylvania court found the American anti-clerical writer Anne Royall guilty of being a common scold, the outcome of a campaign launched against her by local clergymen. Despite the construction of the traditional engine of punishment by sailors at the Navy Yard, the Pennsylvania court ruled the punishment of the cucking-stool obsolete, and instead improvised a fine of ten dollars.

In 1971, Marion B. Dunlevy of New Jersey faced a charge of being a common scold after an argument with two male neighbours over a parked car. The New Jersey Superior Court threw out the charge. [2]

[edit] Current status of the law

In England and Wales, the only part of the United Kingdom where the law had any effect, no prosecutions of common scolds have occurred for a considerable period. Counsel in Sykes v. Director of Public Prosecutions [1962] AC 528 described the offence as "obsolete", and section 13(1)(a) of the Criminal Law Act of 1967 eventually abolished it.

The offence of being a common scold has become obsolete in the United States because only women could commit it, contrary to current interpretations of the Equal Protection Clause, and because in any case all crimes must be statutory under current interpretations of the due process clause in the Fourteenth Amendment of the constitution of the United States. Many states have laws or ordinances restricting public profanity, sometimes blasphemy, excessive noise, or verbal disorderly conduct. But such laws all involve statutory crimes; men as well as women can commit the offences, and they do not carry the distinctive punishment reserved for the common scold.