Nasty Women, New England Graveyards, & the Common Scold

I was still on vacation in Vermont when presidential debate #3 took place. Dan and I agreed that we had zero interest in watching it, although I occasionally checked Facebook to see what my cohorts were saying and to get a secondhand sense of what was going on. As 10:30 and the end of the allotted 90 minutes approached, my curiosity got the better of me and I live-streamed the last couple of minutes on my phone, in time to see Donald Trump lean into his microphone and to hear him speak over Hillary Clinton: "Such a nasty woman." Such a nasty woman. Much eloquent journalistic ink has been subsequently spilled over this offensive, misogynistic phrase but I knew even in the moment that it was BAD and was going to get a lot of (well-deserved) negative press.

Such a nasty woman. After hearing those words directed at the first woman presidential candidate ever nominated by a major party, the issue of the criticizing and the denigrating and the putting down of women, especially opinionated and outspoken women, was much on my mind. It was on my mind when Dan and I strolled around the South Burying Ground in Concord, Massachusetts on a misty Saturday morning before flying out of Logan Airport to return home to North Carolina. 

As we wandered about, soberly reading the inscriptions, the gravestone of Mrs. Zeruiah Miles, the wife of Mr. Charles Miles, who departed this life July ye 12th 1757 in the 30th year of her age, caught my eye. Whoever authored the inscription (Mr. Charles himself?) selected these words to sum up the essence of Goodwife Miles: she was of a pleasant temper a respectful wife and of a good conduct and behaviour in her life.

Sarah Miles, perhaps a relation, who died the year before Zeruiah, lies in the Burying Ground as well. The wife of Deacon Samuel Miles, she is remembered as a prudent and virtuous wife a kind and instructive mother and was conscientious and virtuous in her life and conversation.  Looked at from one angle, I get it, not so terrible to be remembered as kind and pleasant and good and virtuous. May we all strive to be these things, women and men alike. But the problem is that is all women are supposed to be, all we better be, good/kind/pleasant, not to mention conscientious in conversation and virtuous in pretty much everything, all the time, no matter what the situation, no matter what is happening. We were, and are, harshly judged for speaking up or speaking out. We are not praised the way men are for leadership or strength or intellectual accomplishment. The so-called feminine virtues are the ones most rewarded and reinforced. I think of the three most unforgettable Puritan female names I've seen on Vermont gravestones: SILENCE, SUBMIT, and THANKFUL.  A message to the women of the world: Be silent, submit to male authority, and be thankful for that. Amen.

As we continued our walk around Concord, I recalled something I learned in law school -- I may not have been actually taught about this, but rather might have come upon it leafing through my Black's Law Dictionary (bought as a 1L, still in my office), or during some of my feminist reading, namely, the tort of a common scold. A tort is a civil -- as opposed to a criminal -- legal wrong. An aggrieved party can take someone to civil court for such a wrong and get relief. But what, exactly, is a common scold?  

Dictionary.com lays it right on the line: in early common law, a habitually rude and brawling woman whose conduct was subject to punishment as a public nuisance. Or this: A woman who, in consequence of her boisterous, disorderly, and quarrelsome tongue, is a public nuisance to the neighborhood. Wiki weighs in thus: a troublesome and angry woman who breaks the public peace by habitually arguing and quarreling with her neighbors. The Latin name for the offense, communis rixatrix, has the telltale feminine -ix ending, signaling that the offender could only be a woman. A nasty woman.

The fact that such an offense exists at all is bad enough, but but things start to really heat up when we learn about the penalties for this offense, the ducking stool (also called a cucking stool) and the bridle or brank. Although sometimes used for men, especially dishonest tradesmen, the ducking stool was specifically categorized as a form of "women's punishment" and consisted of a wooden chair attached to a plank that was used to plunge the unlucky rixatrix in water. In short, an instrument of public humiliation and social censure:




And the scold's bridle? Nothing subtle about that baby. This humiliating device was a locked metal mask or head cage that contained a tab that fit in the mouth to inhibit talking, nothing short of a form of torture. Here's a picture. Such a nasty woman.






Finally, although many sources call the tort obsolete, let the record reflect that in 1972 (yes, nineteen hundred and seventy two), in the Garden State of New Jersey, a woman was indicted for being a common scold, "a troublesome and angry woman, who, by brawling and wrangling among her neighbors, breaks the public peace, increases discord, and becomes a nuisance to the neighborhood." State v. Palendrano, 120 N.J. Super. 336, 293 A. 2d 747 (1972). (Palendrano is a criminal case and the literature generally describes the scold as a civil wrong, but hey, this is a blog post and not a law review article, so I'm not sure why.) You can read the full opinion here -- it's not especially long, but (spoiler alert!) I am relieved to reveal that Judge McGann concluded that "being a common scold is no longer a crime." McGann found the law of communis rixatrix to be unconstitutionally vague under the 14th Amendment and also discriminatory against women in violation of that amendment's Equal Protection Clause. The judge also threw in some free speech language and a note about cruel and unusual punishment for good measure and dismissed the common scold count of the indictment. I didn't do any definitive research (remember, not a law review article) but suffice it to say I hope that was the last time a woman was indicted for being a common scold.

Such a nasty woman. There is nothing innocuous and, sadly, nothing new about those truly nasty words, which attacked Hillary Clinton on the basis of her gender alone, which at their core attack women for being women, for being themselves. But sisterhood is powerful and the fight goes on. Our voices shall not be silenced.