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

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

Bibliography: • State v. Pendergrass (1837): The court held that a schoolmistress has legal rights similar to that of a parent and that correction by corporal punishment of a student was permissible so long as it caused only temporary pain and no permanent injury. • Joyner v. Joyner (1862): The court held that there are circumstances under which the striking of a wife with a horsewhip, or switch, by a husband, and inflicting bruises would not be the ground of a divorce. • State v. Black (1864): The court held that a husband cannot be convicted of a battery on his wife unless he inflicts a permanent injury or uses excessive violence or cruelty. It makes no difference that the husband and wife are living separate by agreement. • State v. Rhodes (1868): The Court found that the laws of North Carolina do not recognize the “right” of the husband to whip his wife, but that courts will not interfere to punish him for moderate correction of her, even if there had been no provocation for it. • State v. Mabrey (1870): The court found that abusive and very improper language, coupled with a threat to kill the wife, drawing a knife and attempting to stab her, but ultimately not causing any physical injury was assault. • State v. Oliver (1874): The court found that the “old doctrine,” that held a husband had the right to whip his wife provided he used a switch no larger than his thumb, no longer governs the decisions of their Court. Further, since North Carolina had “advanced from barbarism,” the Court found that a husband has no legal right to discipline his wife under any circumstances.