criminal-law england-and-wales common-law mens-rea common-scold
What was the mens rea of being a common scold?
<p>The obsolete offence of <a href="https://en.wikipedia.org/wiki/Common_scold" rel="nofollow noreferrer">being a common scold</a> is somewhat quaintly described by <a href="https://avalon.law.yale.edu/18th_century/blackstone_bk4ch13.asp" rel="nofollow noreferrer">Blackstone (IV:13.5.8, p. 169)</a> as</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>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?</p>
<p>For example, an answer might look like,</p>
<blockquote>
<p>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.</p>
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<p>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.</p>
<p>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.</p>

<h2><a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-ip-46/12-strict-and-absolute-liability/a-common-law-principle-2/" rel="nofollow noreferrer">Common law</a> crimes always required <em>mens rea</em></h2>
<blockquote>
<p>Historically, criminal liability at common law necessarily involved proof of mens rea. In <em>Williamson v Norris</em> (1899), Lord Russell CJ said:</p>
<p>The general rule of the English law is that no crime can be committed unless there is mens rea.</p>
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<p>Statute laws can impose strict liability with or without giving defences.</p>
<p>As for what a judge would tell a jury about how to determine mens rea at the time: <a href="https://lawexplores.com/the-history-of-jury-instructions/" rel="nofollow noreferrer">nothing</a>. 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.</p>
