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Updated: June 13, 2025
The father may pass a statute once in a while, but the common-law which regulates the every-day proceedings of the little community flows from the mother; and we all know that the character is moulded rather by daily practice in trifles, than by a few isolated actions of greater importance in themselves.
The mere suggestion of a difference deep enough to quarrel for, implies a real difference of convictions or interests, and indicates that there ought to be an independent representation of each; unless we fall back, once for all, on the common-law tradition that man and wife are one, and that one is the husband.
Our courts have usually held that there is no common-law principle forbidding women to practise law, but from this ancient statute it would appear that such decisions are erroneous. In 5 Richard II is a law absolutely forbidding the sale of sweet wines at retail.
Perhaps it is a modern notion that marriage is a union of trust and not of suspicion, of expectation of faithfulness the more there is freedom. At any rate, the tendency, notwithstanding the French decision, is away from the common-law suspicion and tyranny towards a higher trust in an enlarged freedom. And it is certain that the rights cannot all be on one side and the duties on the other.
To him it appeared that the Wychecombe estate ought to go with the principles that usually governed such matters; and, although he submitted to the dictum of the common law, as regarded the provision which excluded the half-blood from inheriting, with the deference of an English common-law lawyer, he saw and felt, that, failing the direct line, Wychecombe ought to revert to the descendants of Sir Michael by his second son, for the plain reason that they were just as much derived from the person who had acquired the estate, as his brother Wycherly and himself.
He was trying to be secretary of state in order to supplement his earnings as a lawyer. He was catching at whatever offered to float himself along. His life was, therefore, patchy. Would it ever be a whole, well-fitting garment to his great genius? I took up with him at once the matter of Zoe's common-law marriage.
The students and juniors were in their usual places, sitting at the feet of their favourite Common-law Judge; but the idlers who came for amusement, to saunter about the hall, haggle for books with the second-hand dealers along the south wall, or flirt with the milliners who kept stalls for bands and other legal finery on the opposite side, or to listen on tiptoe, with an ear above the panelled enclosure, to the quips and cranks or fierce rhetoric of a famous advocate these to-day gravitated with one accord towards the south-west corner of the Hall, where, in the Court of King's Bench, Richard Revel, Baron Fareham, of Fareham, Hants, was to be tried by a Buckinghamshire jury for abduction, with fraud, malice, and violence, and for assault, with intent to murder.
During the French Revolution, the same custom largely obtained in France. And about the year One Hundred Fifty in Rome there was danger that the people would overlook the majesty of the law entirely in their domestic affairs. This condition is what prompted Marcus Aurelius to recognize as legal the common-law marriage and say if a couple called themselves husband and wife, they were.
Instead of holding that the Anti-Trust Act included all contracts, reasonable or unreasonable, in restraint of interstate trade, the ruling should have been that the contracts there presented were unreasonable restraints of interstate trade, and as such within the scope of the Act.... Whenever a departure from common-law rules and definitions is claimed, the purpose to make the departure should be clearly shown.
It is also by far the most dangerous to property rights, and this for several reasons: firstly, it involves the destruction of property without any compensation whatever, not upon payment of damages, as in the ease of eminent domain; secondly, on account of the extraordinary extension by our modern legislation of this power to matters not hitherto deemed necessary for the safety, health, or even the well-being of the public, vague as the legal application of the last word is; thirdly, and perhaps most important, because the police power is usually exercised without any common-law guarantees, without process of law or jury trial, but by the arbitrary ruling of some board, or even single commissioner, and often, so far as the statute is concerned, without a jury or even an appeal from the commissioner's ruling to any court of law.
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