Common scold

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Punishing a common scold in the ducking stool

In the common law of crime in England and Wales, 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.

The offense, which was exported to North America with the colonists, was punishable by ducking: being placed in a chair and submerged in a river or pond. Although rarely prosecuted, it remained on the statute books in England and Wales until 1967. Since it applies only to women, it is invalid in the United States as it runs contrary to the Equal Protection Clause of the United States Constitution.

[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

Scold's bridles or branks were probably used as a punishment but no official records of their use have been found.

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.

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. Francois Maximilian Misson, a French traveller and writer, recorded the method used in England in the early 1700s:^[1]

"The way of punishing scolding women is pleasant enough. They fasten an armchair to the end of two beams twelve or fifteen feet long, and parallel to each other, so that these two pieces of wood with their two ends embrace the chair, which hangs between them by a sort of axle, by which means it plays freely, and always remains in the natural horizontal position in which a chair should be, that a person may sit conveniently in it, whether you raise it or let it down. They set up a post on the bank of a pond or river, and over this post they lay, almost in equilibrio, the two pieces of wood, at one end of which the chair hangs just over the water. They place the woman in this chair and so plunge her into the water as often as the sentence directs, in order to cool her immoderate heat."

The ducking stool, rather than being fixed in position by the river or pond, could be mounted on wheels to allow the convicted woman to be paraded through the streets before punishment was carried out. Another method of ducking was to use the tumbrel, which consisted of a chair on two wheels with two long shafts fixed to the axles. This would be pushed into the ducking pond and the shafts would be released, tipping the chair up backwards and ducking the occupant.^[2]

A scold's bridle, known in Scotland as a 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 or punitive measure. Legal sources do not mention them in the context of the punishment of common scolds, but there are anecdotal reports of their historical use as a public punishment.^[3][4] In the United States, scolds or those convicted of similar offenses could be sentenced to stand with their tongue in cleft stick, a more primitive but easier to construct version of the scold's bridle,^[5] but the ducking stool also made the trip across the Atlantic.^[1]

[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, published pseudonymously in 1820, the authors state that "How long the ducking-stool has been in disuse in England does not appear."^[6] 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.

This woodcut shows the wheels on the ducking stool which allowed the occupant to be wheeled through the streets before being ducked.

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.^[7] The last recorded uses of the stool for ducking involve a Mrs. Ganble at Plymouth (1808) and Jenny Pipes, a notorious scold from Leominster (1809). In 1817 Sarah Leeke, also from Leominster was sentenced to be ducked but the water in the pond was so low that the authorities merely wheeled the her round the town in the chair.^[2]

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.^[8] In 1972, a prosecution for being a common scold was brought in the case of State v. Palendrano in which the defendant was charged in relation to a disturbance.^[9] The New Jersey Superior Court ruled the law was void because of its vagueness.^[10]

[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 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.

The offence was abolished in the Australian state of Victoria in 1969 (Abolition of Obsolete Offences Act 1969)[1].

[edit] Notes

[edit] External links

• James v. Commonwealth, 12 Serg. & Rawle 220 (Penn., 1824). Judge Duncan rules the punishment of dunking a common scold obsolete and a cruel and unusual punishment.