The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-12-24
DOES MARRIAGE
SHOW |MbECIL|TY
Justice Clark on the Rights of
Married Women.
DID THE COURT HOLD
THAT A MARRIED. WOMAN CAN
NOT SIGN A VALID CHECK?
HaRKING BACK SOME 400 YEARS
The Courts Decision Not in Line With the Course
of Modern Judicial Opinion Which Has
tended to Enlarge the Legal
Fights of Women.

Fights Of Women.
SO much interest has been manifested
by the public and the legal profession
i'll the recent decision of the Supreme
Court effecting the rights of married
women to convey personal property, to
sign notes, checks, etc, that the dis
senting opinion Of Mr.. Justice Walter
Clark in that case is given below in full.
The ruling of the court has been already
printed. Justice Clark's dissent was as
follows:
No. 2S4, Walton V. Bristol Burke
Clark, j.. dissenting: The Constitution
of North Carolina, Article X, section &
provides The real and personal prop.
erty OF any female in this State, ac-
CURED before marriage, and all proper
ty, real and personal, to which she may,
after marriage, become in any manner
entitled, shall be and remain the sole
and separate estate and property of
such female, and shall not be liable for
any debts, obligations or engagements
of her husband, and may be devised and
bequeathed and, with the written as
sent of her husband, conveyed by her
as if she We're married"
To any one who reads this section, as
1t Is written, it must be clear that the
property rights of 4 married woman re-
main as if she We're unmarried, with
the single exception that she cannot
convey without the written assent of her
husband. That is the sole restriction
upon her disposition of her property
while living. and there is not even that
restriction upon her disposition of it at
death. The emancipation of married
women as to their property rights could
not be more unequivocal. Her property
is to remain her sole and separate estate
and property, as if she We're unmarried
except she cannot convey without her
husbands written assent With
that exception her property rights
remain unimpaired and unchanged
by marriage To the rights
guaranteed tlem by the Consti-
tuition, married women are entitled as
fully as any one else. There is no re-
striction upon her jus dlspondendi" or
using her property, as IF she We're I'M
married." save in the one respect re-
cited in the constitutional guarantee.
There is no disability whatever imposed
upon the freedom to contract, or avoid
ing the possible effect thereof upon her
property. There is no constitutional
presumption that married woman, by
the fact of marriage, becomes less in
telligent, or less competent to contract
than IF she We're ma1ried''-a state in
which she is as free to contract as any
man.
Two arguments have been advanced
why the courts should exercise pater
nal supervision of the Constitution and
construe that it does not mean as to
married women what the language un-
mistakably and unequivocally says.
The first is that as married women
cannot convey without the written as
sent of the husband, to allow them to
contract without such assent would be
to allow them to do indirectly what they
cannot do directly. That is an argument
which might have been addressed to the
Constitutional Convention, and doubtless
was, but it did not induce the conven-
ton to shackle the property rights of
married women by inhibition of their
contracting ON the faith and credit of
property ownership, the courts should
not do it.
The Statute of Frauds for more than
two centuries has rendered invalid con-
veyances of realty unless in writing, but
it has never occurred to any court to
hold that no one could be liable upon a
verbal contract whereby his realty could
be subjected to sale, because, THAT would
permit to be done Indirectly what can
not he done directly" The constitu-
tional emancipation OF married women
Oh .4ia In.
been for centuries given to the same
provision in the Statute of Frauds. A
requirement of writing" in one case,
and of written consent" in the other,
as to "conveyances" cannot be con-
strued differently. so as to forbid ICON
tracts in the one case and not in the
other.
The other objection is that the abso-
lutte property rights of a married wo-
man ''as if she remained unmarried are
in conflict with the common law prece-
dents. That is exactly why the provis-
ion has been put in the Constitution,
which is, and was intended to be, com
plete break with the past in this as
in several other respects.
In Shuler V. A1illsap, II n. c. 29S, Set
tle J., says: "The Constitution of 1868,
and the laws made in pursuance thereof,
have so changed pre-existing laws on the
subject of the estates of females and the
remedies affecting the same, that neither
the elementary books nor our own Re
ports afford us much light in determln-
ing the questions presented by the rec
ord. We are called upon TO Make A
NEW DEP Arturo, LEAVING OLD
IDEAS BEHIND, AND ADAPTING
OURSELVES TO THE NEW ORDER
OF THINGS"
In Walker V. Long, 100 \. c., 511 Mer-
rimon, G. j., says: 1.-The Constitution,
Article \, section g. has wrought very
material and far-reaching changes as to
the rights respectively of husband and
wife i'll respect to her property both real
and personal, and enlarged her personal
ity and her power in respect to, and con-
troll over her poverty
There are many other judicial enuncia-
tions recognizing the radical and com
plete break with the Common Law as