United States Common Law Tradition: Examining 19th Century North Carolina Supreme Court Opinions Concerning Violence Against Woman.

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In the United States, our legal system is based on the common law tradition. When there is no specific constitutional provision, statute, or regulation, courts defer to common law, which is a collection of judicial decisions, customs, and general principles. It is believed that the common law tradition may have begun as early as the 11th century in England with the establishment of the Court of Common Pleas.

Today, using the common law tradition, courts will hear disputes that are brought before them. In doing so, courts consider themselves bound by how other courts of superior standing have previously interpreted a law. This is known as the principle of stare decisis, or simply precedent. Precedent helps to ensure consistency and predictability in the administration of justice with in the legal system.

The cases we read stem from 19th century North Carolina Supreme Court opinions concerning violence against woman and, or, children by a husband or someone of authority (e.g. a schoolmistress). The cases show a precedent being established in State v. Pendergrass, which allowed corporal punishment, and then evolving in subsequent cases over a period of roughly 40 years, until the court found that “… [they had] advanced from a state of barbarism …” reaching the conclusion that a husband has no legal right to discipline his wife under any circumstances.

I would like to point out that coverture, which was a well-established legal principle that a woman's legal rights were merged with those of her husband upon marriage was part of the common law tradition of England and the United States throughout most of the 18th and 19th centuries. The woman’s existence was incorporated into that of her husband, so that she had very few recognized individual rights of her own.

Although excessive violence was generally frowned upon, many courts of the era recognized that a husband did have the right to “discipline” his wife, with very few exceptions. The general attitude...
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