Page:Harvard Law Review Volume 5.djvu/107

NOTES. 91 Common Scold. — Ducking-stool. — The recent New Jersey decision x that a common scold is indictable as a common nuisance at once arouses one's curiosity to know if the court sends her to the ducking-stool, — the common-law punishment for this common-law offence, — and to wonder, further, if the gag, the whipping-post, and the pillory are still common down there in New Jersey. Those instruments of punishment are cer- tainly scarcely less civilized than this offence communis rixatrix? which degrades woman to the condition of a mere thing, a nuisance, and is really a relic of a time when woman was a slave or servant, when witches and gypsies were hung, noses were cut off, and tongues were cut out for false rumors. To be sure the offence was pretty generally recognized in the early days of the colonies, while in Virginia, and perhaps in other colonies as well, the ducking-stool was common as its punishment. In 1634, a man writing from Virginia to Governor Endicott of Massachusetts de- scribes the ducking of a scold there which he has just witnessed, and then continues : " Methought such a reformer of great scolds might be in use in some parts of Massachusetts Bay, for I 've been troubled many times by the clatter of y e scolding tongues of women y' like y e clatter of y e mill seldom cease from morning till night." 8 Whether the instrument was ever in use in Massachusetts is doubtful, although one was said to have been in existence in a small Massachusetts town not many years ago. In New York the ducking-stool was early decided against ; and, much more than this, in the time of Governor Fletcher the rule against scolds in New York was very properly — if such a rule was to be maintained at all — extended to apply impartially to men and women alike. • Coming down to the present century, in a Pennsylvania case 4 so late as 1825, a woman was convicted of being a common scold and sentenced to be ducked three times; but the case going up to the higher court, the judge said such punishment had never prevailed in Pennsylvania, and he should not allow it ; that while he admired the general structure of the common law as much as any one could, still, — as he expressed it, — "I "am not so idolatrous a worshipper as to tie myself to the tail of this dung-cart of the common law." He further said he hesitated to decide the offence indictable even, but on this point he yielded to his brother judges. That Pennsylvania decision was half a century ago, and while it seems to us surprising that even then a judge should have only " hesitated " to de- cide a scolding woman indictable as a common nuisance, yet at the present time it seems not only surprising but monstrous that we have not advanced far enough towards the equal rights of woman, but that she who scolds may be fined, imprisoned, or ducked, while the most scandalously abusing and railing man goes unpunished. Justice — Sale of Church Property for Debts. — The recent decision of the Georgia court 6 that a church site and edifice should be 1 Baker v. State, 20 Atl. Rep. 858. 2 IV. Black. Com. 169. 3 Amer. Hist. Rec. 204. 4 Jones v. Com., 12 S. & R. 220. 5 Lyons v. Savings Bank, 12 S. E. Rep. 882.