Historical Newspapers of South Carolina

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' ???d? i .. A.REFLEX OF POPULAR EVENTS. JOHN C. BAlLEY, PRO>R. GREENVILLE. SOUTH CAROLINA. AUGUST 11. 1869. VOL. XVI \a 11 O. F. TOWNE8, HUTOft. >-' i T BsiKuniMr Two Dollars per annum. AdtiHiiimiti inserted at ths rate* of one dollar par square of twelve Minion line* (nil siaed typo) or low for tbo ft rat insertion, any eOoU eaoh for tbo oooond and third iasnrttons, and tweutv-flve eonU for subsequent Insertions. Yearly ooutraota will bo made. * All adrertiaomonU moat haro the number *tf laaortlono marked on tbom, or tboy will bo !?>sorted till ordered oat, and charged for. Unless ordered otherwise. Advertisements Will invariably be " displayed." Obituary notices, and all matters Inuring to to tbo benefit of any one, are regarded as Advertisements. The Homestead Law?Another Deoision of Judge Orr. "Wohave been furnished with the annexed extract from a decision of Jndgo Orr upon the Homestead L* L ?11 t . i? _ ft e juhw, wmcii win ue 01 especial interest to the legal fraternity: OOONKE COUNTY?JULY TERM, 1869. n (U common flka.0?kq01tt tldb. Joseph R. Shelor vs. John Mason, 8r.^and John Mason, Jr.?Bill to foreclose Mortgage. ? The rojx>rt of the special reftrees submits for tlio consideration of the Court whether the defendant and his family now residing on the mortgage premises'are entitled to claim and rc3crvo a homestead in the same. Tbey submit the idenco takon on reterefieo, ' but mako no recommendatiou to . 0>e 4 Court whether or not a homestead * should be allowed. ^ Is the defendant Mason and his family entitled to have set off and assigned to them a family home stead of the value of one thousand dollarc within the mortgaged premises, pursnant to the provisions of the Act of Assembly of 9tli September, 18C9, entitled " Au Act to determine and perpetuate the Homestead ?" The single bill and mortgage .were oxeeated on the 25th day ot August, 1866. The Constitution of 1868 was ratified by the legal voters of the State on the 14th, 15th and 16th of April of that year, and was accepted by Congress without alteration or amendmAnf tlin .Tnlc \tillnwinr. Tlio QO/1 v ?? * J ?V ?V? 111^* JkUW Section of Article II, provides that " the family homestead of the head of each family residing in this State, such homestead consisting of dwelling-house, outbuildings and lands to the value of one thousand dollars," Ac., "shall be exempt from attachment, levy or sale or any mesne or final process, issued from any Court," Ac. No exception is made in favor of any lien, debt, or execution existing at the date of its adoption. In all cases, where land was to be sold by any process from any Court, after this section was rati. fied by the people and accepted by Congress, the head of the family became entitled to a homestead.? The Act of Assembly to carry into effect fbis section, entitled " An Act to determine and perpetuate the Homestead," leaves no ground for construction on this question. The first section provides that " whenever the real estate of any head of a family risiding in this State shall be levied on by virtue of any mesne or final process, issued from any Court upon any judgment, obtained upon any right of action, whether arising previous j or subsequent to the ratification of the Constitution of the State of J South Carolina, ii the same be the family homestead of such person, the Sheriff or other officer executing 6aid process shall cause a nomesioau sucn as saia person may select not to exceed the value of one thousand dollars," &c.. " but the residue of the lands and tenoraents of the head of the family, if any more or other he shall have, shall bo liable to attachment, levy and sale" The General Assembly basfurth er manifested its solemn and deliberate determination to have the Constitution and the Statute al-l ready referred to enforced in all cases therein provided for, in an Act entitled "An Act to pnuish Shcriife and other officers (or violating the Homestead," approved 16th January, 1809. The first section provides that no Sheriff or other officer shall enforce execution in any other manner than is pre. oribed in sections 1 and 2 of the Homestead Act. The second section provides that if any person shall sell any real estate without complying with section 1 of the i JfV , Homestead Act, lie shall for the first offence be deemed guilty of malfeasance in office, and on conviction, shall be fined not less than $500 and not moro than $1,000; and for the second offence shall be dismissed from office. The Constitution and these Acts prescribe so clearly the duty ol public officers in raakiDg sales under process from any Court, it would seem to be hardly necessary in a decree to direct the officer ordered to sell to set off and assign a homestead to the head of a family, as a failure to do so would bo i at his peril, without an order. | But as the question is raised in the pleadings, in the report of the i special referees in this case and in tne argument of counsel as to de| fend ant's right to havo the family i homestead set ofi and assigned, 1 *11 -4-4. ?* - win suite my viowb on uie qucs| tion. It is objected to the Constitution of the State and the Acts of Assembly securing a homestead as to antecedent debts, liens and judgments, that tlioy are a violation of that clause in the Constitution of the United States which prohibits any State from passing "any law impairing the obligation of con tracts." Is not the objection met by numerours authorities in theOonrte of sister States, and by eminent legal writers, recognizing the right of iState Legislatures to pass laws exempting property of a dobtor from levy or sale even for antecedent debts, and is not the principle 1 recognized in various decisions of j the Supreme Court of the United States? In Morse vs. Gould, 1 Kernan (N. Y.) 281, Judge Denio, deliver ing the opiniou of the Appeal Court, saiu : " I regard tho Act oi 1842 (extending the exemption law of that State to a team and additional household effects) as a provision clearly within the com petcncy of tho Legislature, and one which they might lawfully apply to all future proceedings in Courts, whether sucu proceedings 6hall relate to existing or future causes ol action." In this case a judgment and execution had been obtained in an inferior Court before tho exemption law was passed, and the Court held that tho exemption wae valid even as nguinst such judg ITIAnf Tll? alwlronl nf T n ? ? Dcnio*s opinion is: "First, T?hc Act exonipting certain property from levy or salo on execution (N Y. Statutes, 1842?193) applies tc judgments and executions on debti contracted before as well as aftet its passage. Second. This Act merely modifies the remedy foi enforcing contracts, and neither destroys it nor substantially im pairs its efficiency. Therefore, il does not conflict with the provi sions of the Constitution of the United States forbidding any State to pass a law impairing the obli gation of contracts, and is valid.* In Bigelow vs. Pritchard, Jndgc Putnam, delivering the opinion ol the Supremo Court of Massachu setts, said " that the Legislature might lawfully diminish tlic cred itor's remedy to enforce paymenx by exempting a part of the prop erty of tho dentor from attachmoni or mesne process, or levy or exe cation." In Rockwell vt. Ilnbboll, 2 Doug lass 197, in the Supreme Court ol Michigan, it ia belu " that proj>er ty may be exempted from execn tion for debts contracted before the law of exemption was enacted The Supreme Court of Georgia, in a recent case, has decided thai the exomption of a homestead ol the value of two thousand dollars, authorized by the Constitution oi that State, from lovv or sale even for antecedent debts, liens and Iuugiueute, it* vumi, unu uoch nui mpair the obligation of contracts. The samo point has been ruled, 01 tbo game principle involved, hae been decided, in other States of the Union. In 8 Parsons on Contracts, 552, the learned author, after reviewing many of tho cases decided in different States, says: "At the same time, however, it is admitted that a Stato may make partial exemptions of property, as of furniture, food, apparel, or ev*n a Komettoad.''* Again, on the same page, he says: "It is to be observed that as to the remedy, there can bo no difference between a \ i debt exisiting before and one con- i f tractcd after the law is ma e." tl In the Planter's Dank vs. Sharp, t 0 Howard, 801?330, Judge Wood- 6 , bury, in delivering ilio opinion of i the Suprome Court ot the United li States, admits that " laws may be e i passed by the State Legislatures c ' exempting tools or household goods f from levy or sole under existing a I contracts." ~~ t If the principle is once conced- t ed that property of small value a can be exempted from levy for 1: . contracts existing before the pas- e i du^u vt iuu ittw, iiuw cau such an i enactment be said to bo unconsti- ? .tutional when tho value of the , property exempted is enlarged ? t The exemption of household of- t , fects, of femall value, under what f was popularly designated tho " cow <3 and l)ed law " of this State, more y , effectually hindere<? V>d defeated e tho creditor, in many cases, than a 1 homestead exemption of one thou- h sand dollars would do in others. \ The.princplo upon which the r constitutionality of the Homestead y . law ia. maintained has been admit- r t ted by the Supremo Court of the c ( United States, in cases where the ? , State Legislatures have passed i laws changing the statute of limi- 1 tations; discharging insolvent debt- 1 ors; and abolishing imprieoment <. for debt. It is said, however, that j 1 soch legislation effects only the t ' "remedy" of tho creditor, but c 1 docs not impuir the obligation of t ' the contract. i Will not an examination of the f result of such enactments shew c 1 that the exemption of a part of the r debtor's goods and lands binders, p delays and defeats the creditor in r many cases in a less degree than c i the enactments referred to, which have been ruled constitutional by i 1 the Supreme Court of the Uuited k ' States} t J The debtor contracts a debt; his 1 1 promise is to pay the money; the f crecnror is entitled to demand atvi* > receive it when due. Ho ha6 his ] remedy, as the law cxiets at the i date of the contract, against the * property of the detbor then held, c and all his subsequent earnings, } until the whole debt is paid, lie k may hold but little proj>erty wlion 1 the credit is given, but being a 6 ' skilled artisan or mechanic, the * 1 creditor relies more upon his tu- H 1 ture earnings for payment than upon the property then held.? ^ * Suit is instituted and judgment re- B s ceived. In the meantime the Leg- 1 islature enacts an insolvent law, r which authorizes the debtor to sur- * render bis effects, which many be 1 1 only nominal in value, to the cred- ] itors, and be forever discharged > ( from all liability ever to pay an- \ other cent to the creditor, all hi? i future earnings being protected * " from liability for the unsatisfied ' portion of the debt. Is the origi 1 ' nal contract impaired, or the crod- ' 1 itor hindered, defeated or delayed * ' by the enactment I The Supreme 1 \ Court say, no. 1 So. too, of the statute of limitaj tions; when the debt is contracted < the statutory term is a given nam- * ber ot years; the Legislature reduces it, and if it possesses the f constitutional power to reduce it ' from six to three years, why not ^ less than three, and if less, how much less can they declare it ?? The creditor, by accident or ignorance, fails to sue under the amend' ed statute, and on the theory that ' the Legislature has only modified ' the " remedy,M he loses the debt. ' Is tho original contract impaired, 5 or tho creditor delayed or defeated by this subsequent legislation f i Tho Supromo Court say, no. ' So, too, of imprisonment for ' debt. The debtor has no visible . property upon which an execution 1 may be levied. His effects consist ' of money and choses in action. | He obtains credit; the croditor knowing that under existing laws he f can enforce payment by his execu- < tion of oaj>ia? ad aatitfaceindum. I The creditor obtains his judgment I and issues bis ca.aa.; the debtor is f arrested, and before ho makes his * i assignment, the Logislatnro abol- < ishes imprisonment for debt; the i i prison doors are opened, the debt- t i or departs, and the creditor having 1 . no compulsory process against the < I body whereby an assignment of < . the choeos in action or i aymont of * i the money can bo enforced, loses 1 i his cntiro debt; and the legislative > act, producing the result, aud of- > i fecting only the remedy, is consti. < , tutional? Is tho or g ual contract 2 a A I. IP mpaired, or the creditor hindered, lelayod or entirely defeated, by his snbeeqnent legislation! The lupreme Court say, no. Is the enactmont of a homestead aw, which is sanctioned by a genirons humanity for the wives and hildren of unfortunate or im- i trovident husbands and fathers, i ny more obnoxious to the constiutional objection, that it impairs ' he " obligation of contracts" when i .pplied to existing contracts and iens, than the legislation comment- i d on above and sanctioned by i ho Supreme Court of the United i Itates. 1 In the case under consideration, t ho remedy is changed, by the act 1 o secnro a homestead. The de- < end ant is entitled to a homestead < luring his lite, if he continues in i lossession of it. Under the form- < ir law, tho complainant, on filing I lis bill to foreclose his mortgage, ind making proof ot his demand, vas entitled to an order to sell the nortgnged premises or a sufficient >ortion of them to satisfy his debt, md tho defendant's equity or relemption was forever barred. Tho itatc, believing that it was an cmnently wise policy to secure a lomestead to each head oi a famiy, and prevent tho immigration >f her citizens consequent npon the general and indiscriminate sale of heir homes, postpones the remedy >f foreclosure as to that part.of the ract which may be assigned, durng tho life or occupancy of the do- < umlaut. He can forthwith pro:oed to sell that part of tho tract lot assignod, and when the contin;oncy provided for in the Act arives, terminating the rights of the lefendant, he can sell tho balance. Could not tbo Legislature, in organizing the judicial system of the state, have provided that no judge diould have jarisdic'iou of an hj>dication to foreclose a mortgage or one year ? And if for one year, yhv not tor ten or twenty years? f tor one or twenty years, would t not have been equally compe viib vu uuvu muuc uio proamnion sontinue during the lite or occu>ancy ot' ench mortgagor in the State? It might have been very , injust or capricious to have made uch an enactment, but who can , leny their authority to have done ?? . , l In Sturgis vs. Crowninshield, 4 >V heat, 200, Chief J ustice Marshall ays: "The distinction betwein he obligation of a contract and the emedy given by tlie Legislature o entorco that obligation, has been aken at tho bar, and exists in the laturo ot things. W ithout itnpairng tho obligation of tho contract, ho remedy may certainly be modlied, as the wisdom of the nation ihall direct."' There is nothing nnjust or imnoral in conceding this power to ;he Legislature. " All contracts ire mado with a full knowledge of ho parties that the law-making lower may modify the remedy The foregoing views are present :d upon the assumption that the Constitution of the United States ^aa oj>crative, and tho supreme aw of South Carolina, from the uirrender of tho Confederate ar mica in April, 1865, to July, 1868, when the present Constitution was accepted by Congress, and the State admitted to representation. But is snch assumption true, in Saw (I mean the legislation of Congress) or in fact f Tako tho rcconitrnction acts of Congress, and up>u examination, what feature do ,hey present compatible with the hcory that the Constitution was >f force or that its guarantees of ,he rights of tho States was recoglizodoy Congress 1 The logisla* ion was even more absolute than my previously applied to tho ter'itories when organized, or to their mabling acts when about to apply or admission into the Union. It lenied the 8tate representation in x>th branches of Congress?each SYate is entitled by the Constitnion to representation ; and in the Senate, no State can be deprived >f its equal representation without ts consent. It denied the rierlit of ;he State to pass, and ignored all aws existing, fixing tho qnalificaions of votere. It prescribed a ;lass of voters, constituting a large najority, who should exercise the privilege, who had never before )ccn recognized as citizens. It dolied the right of suffrage to a large doss of the most intelligent citizens and excluded tliein irom hold ing office under the new govern ment. It ignored the Constitution and all laws of the State prescribing the time, place and manner of holding elections. It established the military power superior to the civil, and made the latter entirely subordinate to the former. The de facto government then existing was declared to bo only prov isional. The military was invested with nearly nnlimited power* and not i unfrequontly exercised it without stint in superceding and annulling existing laws in the Stat*, cud lw t t O ~ ' ""J military order ordaining and enforcing new laws. It removed State officers, with and without lawful cause, and ap|>ointed their meccssora. Tho Governors of Creorgia and Mississippi were removed early is 1867, and the Governors of North Carina and this State in 1868, and successors appointed. Judges woro removed because they refused to carry out military orders in their Courts. The citizen was not only liable to be arrested, tried, convicted and punished by military tribunals for violation of civil law alono, but this extraordinary power was put into force against many of the citizens, who, if the Constitution of the United States had been of force within the limits of South Carolina, could have appealed to the civil tribunals?to the writ of habeas corpus?to the judgment of their peers, to relieve them from the clutches of the military. Tho war was ended in May, 1865?the last Confederate soldier had laid down his arms. If the Constitution of the United States was of force in this State, to protect the rights of the citizen and State, until July, 1868, why was it that the military power during these three long years was not only not subordinate to, but actually superior to the civil authority ? 1 s it not manifest, from this review of the legislation of Congress and the *i !i!i ? avuuu vi mv miinarj' uuuioriucs, that the government uudcr which we lived was military; all civil functions in every department tolerated and recognized no longer than they were consistent with the wishes and opinions of the military commandant. If this bo true, then the Constitution adopted in this State could not conflict with any clause of the Constitution of the United States, because it was not of force at the time, to restrain tho Convention or protect the people. But after its ratification by the people, it was to havo no force or effect until Congress accepted it. It was presented, and Congress did accept it unconditionally. If the clause securing a homestead, or tho clause prohibiting the collection of debts, the consideration of which was tho purchase monoy of a slave, had been obnoxious to the charge that thoy impaired the obligation of contracts, they would havo been strickon out by Congress, or the Legislature required by solemn act, and as a condition precedent to admission, to repeal the clauses, as they did in tho case of Georgia. The Constitution of Georgia, when presented for acceptance, contain ed two paragraphs practically repudiating all debts. These clauses Conffre&a reonirod Genrcia tn ra o ~l *w v nounce, which was done by her Legislature, but no exception was taken to the homestead section in the same instrument, though its val no was fixed at $2,000?double that provided in this State. As already stated, the Constitution of tho United States was not recognized as of force in this State. Even the rights and immunities uniformly accorded to the organized territories of the United States, and to persons tosiding without the Slates and territories in tho Indian country, were repndiated by the acts of Congress and practice of the military. Protection of person and property, of the right of trial by jury?of being confronted by witnesses?of presentment by a grand jury before being held to answer a criminal charge?of making our own laws?of imposing our own taxes?of representation in a Stato or national legislature? of choosing our own officers?of executing our own laws?of making contracts with our laborers, and ot enforcing such contracts by any known law?of appealing to the writ of habeas <y>rpus?ull were denied to us as rights, and such as were enjoyod were permissive on]y What single fcatnre in any paragraph in the Constitution of the United States spread its protection a?gis over the territory or inhabitants of South Carolina? Can it be gravely urged, in the face of this review of the condition of affairs from May, 1805, to July, 1806, that such clauses of the Constitution as restrained the powers of State aud citizens were of force and those giving them protection were not of force ? Can it be sori ously insisted that the clause prohibiting any State it-om passing a law impairing the obligation of contracts was operative to restrain the Convention that formed the now Constitution, when none of the personal or political rights, privileges and immunities of its meinocrs, or 01 meir constituents, wore recognized or en for cod by and tlirough the remaining sections of the samo instrument? Surely not. The Constitution in this territory was dormant, sleeping, in abeyance. Tho government was military. The reconstruction acts of Congress and tho will of the military commandant was tho only Constitution of force ?the supreme law of tho land. It was us absolute ns though wo had been a conquered province, wrested from a neighboring nation. If the Constitution of the United States was not of forced hen tho Constitution of the State was framed and ratified, and did not become operative until accepted by Congress, then there was no constitutional restraint on tho-Convention, and none of tho provisions of tho State Constitution can be held to bo violative of any clause in tho Constitution of the United States. Tho Supremo Court of tho United States held at an early day, that State laws passed prior to 1798?the date of tho adoption of tho Constitution?impairing tho obligation of contracts, were valid, us the Constitution did not previous to that time exercise any limitations upon the legislation of tko States. After the admission of Texas into the Union, the same decision was made by the same Court, affirming the validity of a law passed by the Legislature of that Stato prior to annexation, which, if passed subsequently, would have 44 impaired the obligation of contracts." The Convention of this Rtntn might havo declined, however unjustly, to recognize any debt, judgment or lien that existed by virtue of the laws of the preceding governments of the State, ana what remedy could have been found for the omission or rofusal ? If they had the power to refuse altogether, could they not, when recognizing debts, liens and judgments, annex conditions to such recognition 1 No moro has been done here. It is said in effect to the complainant, your morgagc is recognized, but subject to the condition that tho defendant 6hall enjoy a bomostcad, conformably to the Constitution, and the act of the Legislature perpetuating and defining it. I therefore adjudge, that t! o Constitution and laws of this Stato, securing a homestead to each head of a family, whether the debt or lien cxistod.atthe date of the adoption of the Constitution or has been subsequently created, is no violation of the Constitution of the United States. If I had grave donbt9 on tho question, I should feel it my duty to solve them by pronouncing tho Constitution and laws of tho Stato do viomuon ot tbe Constitution of tho United States. Wben the Circuit and Supreme Court Judges of a State decide a State law unconstitutional, no appeal lies to tlio Supremo Court of tbe United States, and the citizens is thereby denied the privilege of vindicating the constitutionality of the State enactment before that angust tri. bunal. * * * I (Signed) JAMES L. ORR. 1 July 21st, 1809. " Miss," said a bigh-strung6wain to a rural dulr.inca, "Let us walk in yonder beautiful meadow whero the clovor is in blossom and the amorous zephyrs play." " Oh, darn the amorous boilers," she replied, MI see enough of thera over oil dad's farm."