[NJ337] [A748] Marion Palendrano was indicted on three counts: the first charged an atrocious assault and battery by her on Margaret P. Maguire on July 21, 1970; the second with threatening to take the life of Margaret P. Maguire on the same date. The third count is the subject matter of this decision and is set forth at length:
THIRD COUNT
And the Grand Jurors of the State of New Jersey, for the County of Monmouth upon their oaths do further present that MARION PALENDRANO on the Twenty-First day of July, 1970, and divers other days and times as well as before and afterwards in the Township of Middletown, in the County of Monmouth aforesaid and within the jurisdiction of this Court, was and yet is a common scold and disturber of the peace of the neighborhood and of all good and quiet people of this State to the common nuisance of the people of this State, contrary to the provisions of N.J.S. 2A:85-1 and against the peace of this State, the Government and dignity of the same.
When the matter came on for trial the Court severed the third count on its own motion and requested memoranda and the benefit of oral argument from counsel.
[NJ338] In contemporary society the average citizen, as well as the professional lawyer or jurist, may reasonably ask two questions: 1) What is a Common Scold? 2) Is that status still criminal?
What is a Common Scold? Students of legal history are referred to the detailed and interesting reviews of ancient antecedents contained in James v. The Commonwealth, 12 Serg. & R. 220 (Pa. Sup. Ct., 1824); U.S. v. Royall, 27 Fed. Cas. p. 907, No. 16,202 (Circuit Ct. D.C. 1829); State v. Reynolds, 243 Minn. 196, 66 N.W. 2d 886, (Sup. Ct. 1954). The incidents of the offense may be summarized as follows:
A Common Scold is 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. At common law, common brawler or common scold meant a person of an habitually quarrelsome, noisy, and wrangling nature, although brawler denoted something harsher than scold, namely anger, loud outcries and tumult.
A peculiar feature of the offense of being a common scold has been said to be that it reduces woman to a mere thing, to a nuisance, and does not consider her as a person. The offense does not consist of a single act, but in an habitual course of conduct; therefore, the element of continuity is essential, and there must be a habit or practice of scolding. It is not necessary, however, that the scolding be done in anger or turbulence. While a common scold may be indictable as a common nuisance, the offense of being a common scold or a common brawler was indictable at common law. 15A C.J.S.C.ommon Scold §§ 1, 2 p. 81.
Being a Common Scold was a crime under the Common Law of England. Blackstone lists it under "Offenses Against The Public Health And The Public Police Or Economy." Specifically, it appears among other public nuisances such as Disorderly Houses, Lotteries, Eavesdroppers, Vagrants, [A749] Rogues and Vagabonds. It is defined as follows:
COMMON SCOLDS -- Lastly, a common scold, communis rixatrix (for our laws -- Latin confines it to the feminine gender), is a public nuisance to her neighborhood, for which offense she may be [NJ339] indicted, and, if convicted, shall be sentenced to be placed in a certain engine of correction called a 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.
IV Blackstone, Commentaries on the Laws of England, 168 (Seventh Ed. Oxford, Clarendon Press, 1775).
With a certain syllogistic nicety the State argues that the indictment is valid. The argument is thusly stated: "Nuisances . . . and all other offenses of an indictable nature at common law, and not otherwise expressly provided for by statute, are misdemeanors." N.J.S.A. 2A:85-1. Being a common scold was an offense of an indictable nature at common law (and not otherwise expressly provided for by statute). Therefore, being a common scold is a misdemeanor under the laws of New Jersey.