The obsolete offence of being a common scold is somewhat quaintly described by Blackstone (IV:13.5.8, p. 169) as

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 judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment.

I've been having difficulty finding the mens rea, or mental element, of this offence. Has the mental element of this offence ever been determined or discussed? For example, is it a general intent crime (for which the defendant must simply have been generally aware of what they were doing and intended to do those things), or is it a specific intent crime in which the defendant must have specifically intended their behavior to annoy others or go beyond customary community standards?

For example, an answer might look like,

In the case [cite], Mary Smith appealed from her conviction for being a common scold on the basis that the judge had not apprised the jury of mens rea. Held, a specific intent to impair community cohesion was an essential element of the offence of being a common scold and failure to instruct the jury was reversible error. Remanded for retrial.

To be clear, I am aware that this offence has been obsolete for almost a hundred years and was finally and formally abolished in 1967. I'm thus asking about what the mental element of this crime was during the time period in which it was actively prosecuted. If there are cases outside of England and Wales that have specifically ruled on the mental element of this specific offence as received under common law, I would accept that as an answer. I am specifically asking about the offence of being a common scold for which the punishment is the cucking stool and not about modern laws on disturbing the peace or disorderly conduct for which the penalties are typically a fine, jail time, and/or probation.

For those who might say that this is too old an offence to have a mens rea, I note that the mental elements of larceny and murder were well-established hundreds of years before the offence of being a common scold became obsolete.

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    Considering the likelihood that misogyny played a big part in deciding who got accused, it's possible that there was no requirement to establish mens rea. Monty Python and the Holy Grail - Witch Scene
    – user35069
    Aug 10, 2022 at 20:53
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    @Rick if you can find a source for that (that it is a strict liability offence), that is an answer! Aug 10, 2022 at 20:54
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    @Michael that is true, but I would assume that legal scholars are more likely to find the answer than historians. Aug 10, 2022 at 21:15
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    I ran a quick word search for "scold" through The Concept of “Unusual Punishments” in Anglo-American Law which threw up some American examples which may be of interest.
    – user35069
    Aug 10, 2022 at 21:32
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    @rick that's very interesting. I went through it and it seems to focus much more on the punishment of the ducking stool itself than on what the crime actually consists of. In fact, it comes out and says that the obsolescence of the characteristic punishment (the stool) does not render the crime obsolete and that a court may impose a fine or imprisonment in lieu of ducking. Aug 10, 2022 at 22:10

1 Answer 1


Common law crimes always required mens rea

Historically, criminal liability at common law necessarily involved proof of mens rea. In Williamson v Norris (1899), Lord Russell CJ said:

The general rule of the English law is that no crime can be committed unless there is mens rea.

Statute laws can impose strict liability with or without giving defences.

As for what a judge would tell a jury about how to determine mens rea at the time: nothing. Jury instructions are a 20th-century development; prior to then the judge did not instruct the jury, he (because there were no shes) would only answer questions and usually in a way that left the jury none the wiser for the answer. This evolved in parallel with the separation of the judge into the trier of law and the jury as the trier of fact - this division didn't exist and each would do a bit of both depending on the proclivities of each judge. I'm sure you can see why both innovations were adopted.

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    Of course, this is only half of the issue. One still would need to apply it to this particular crime to determine what intent someone would need to have to satisfy the mens rea requirement for this particular case. Certainly, they would need to know that they had taken the actions that made them a common scold, for example (rather than, perhaps, believing that they were dreaming while under the influence of an intoxicant, for example), but they might not need to know globally that these actions, collective, made this person "a common scold."
    – ohwilleke
    Aug 11, 2022 at 0:21
  • @ohwilleke ultimately whether a person has mens rea is, strangely, not for them to say - it's for the trier of fact to determine based on the evidence. Since we don't have mind-reading technology, mens rea is always inferred from the acts and omissions of the accused (barring a confession).
    – Dale M
    Aug 11, 2022 at 0:26
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    Not wrong, but there is still a question of law regarding what the court must find that the person had mens rea regarding to satisfy the elements of the crime. In modern criminal law, this is worked out quite precisely with lots of case law, but due to the procedural context at the time, this legal issue may never have been clearly resolved.
    – ohwilleke
    Aug 11, 2022 at 0:28
  • @DaleM I know that, but that is true of every crime that is not one of strict liability. Whether or not someone had the malice aforethought necessary for murder is a question of fact for the trier of fact. My question is not about this, but about how the mental element for being a common scold has been defined, if it has been defined. Is it strict liability? Is it a general intent crime (must have intended the behavior)? Is knowledge that the behavior constitutes a "public nuisance" necessary? Does it require a specific intent to harm community cohesion? Is intoxication a defense? Aug 11, 2022 at 0:48
  • @RobertColumbia as ohwilleke has indicated, jury instructions are a 20th-century development in the law. At the time this case was decided, a judge did not instruct the jury, they only answered questions put to them by the jury and usually in such a way that the jury was none the wiser for the answer. Since the decision of the jury is one of fact and not law, there will be very little, if any, appellate law on this.
    – Dale M
    Aug 11, 2022 at 1:00

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