The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-07-29

defeats the creditor in many cases in less degree
than the enactments referred to, which have been
ruled constitutional by the Supreme Court of the
United States?
The debtor contracts debt: his promise is to
pay the money; the creditor is entitled to demana
and receive it when DUE He has his remedy, US
the law exists at the date of the contract, against
the property of the debtor then held, and all his
subsequent earnings, until the whole debt is paid
He may hold but little property when the credit ls
given but being skilled artisan or mechanic, the
creditor relies more upon his future earnings for
payment than upon the property then held. Suit
is instituted and judgment recovered. In the
meantime the Legislature enacts an insolvent law,
which authorizes the debtor to surrender bis Ell
fects, which may be only nominal in value, to the
creditors and be forever discharged from all lia-
biEty ever to pay another cent to the creditor, all
his future earnings being protected from liability
for the unsats6ed portion of the debt. Is the
original contract impaired, or the creditor him
dered defeated or delayed by the enactment? The
Supreme Court say, no.
So, too, of the statute of limitations; when the
debt is contracted the statutory term is given
number of years; the Legislature reduces 1t, and
if it possesses the constitutional power to reduce
lit from six to three years. why not less than three,
The creditor by accident or ignorance fails to sue
under the amended statute, and on the theory that
the Legislature has only modified the "remedy,"
| he loses the debt Is the original contract i'm
paired or the creditor delayed defeated by this
| subsequent legislation? The Supreme Court say,
| no.
So, too, of imprisonment for debt. The debtor
has no visible property upon which an execution
NAV be levied His effects consist of money and
l Il. -, Ho Ioin
knowing that under existing laws he can enforce
payment by his execution of eapias ad satisfdcic1-
dun. The creuitor obtains his judgment and is
sues his co. sa; the debtor is arrested, and before
he makes his assignment, the Legislature abolishes
| Imprisonment for debt; the prison doors are
opened, the debtor departs, and the creditor hav-
| ing no compulsory process against the oody'
whereby an assignment of the chooses in action or
payment of the money con be enforced, loses his
entire debt; and the legislative act producing the
result and affecting only the remedy, IS constltu'
tional Is the original contract impaired, or the
creditor hindered, delayed or entirely defeated,
by this subsequent legislation? The Supreme
Conrt say, no,
| Is the enactment of homestead law, which is
sanctioned by generous humanity for the wives
and children of unfortunate or improvident hus-
bands and fathers, any more obnoxious to the con-
stitutional objection, that it impairs the obga-
ton of contracts" when applied to existing con-
tracts and liens, than the legislation commented
on above and sanctioned by the Supreme Court OF
| the United States.
| In the case under consideration the remedy is
changed, by the act to secure homestead. The
| defendant is entitled to homestead during his
life if he continues in possession of it. Under the
former law. the complainant, on filing his bill to
foreclose his mortgage, and making proof OF his
demand, was entitled to an order to sell the mort
gagged premises or sufficient portion OF them TO
satisfy his debt and the defendants equity OF re-
demption was forever barred. The State, oeileV-
ing that it was an eminenty wise policy to secure
homestead to each head of family, and prevent
| the immigration of her citizens consequent upon
the general and fndiscrimnate sale Of their homes
postpones the remedy Of foreclosure as to that
part of the tract which may be assigned, during
| the life or occupancy of the defendant. He can
forthwith proceed to sell that part of the tract not
assigned and when the contingency provided for
in the Act arrives, terminating the rights OF the
defendant, he con sell the balance.
Could not the Legislature, in organizing the Ju-
dicial system of the State, have provided that no
Judge should have jurisdiction of an application to
forecose n mortgage for one year? And If for one
wear, why not for ten or twenty gears! Ii for one
or twenty years, would it not have been equally
competent to have made the prohibition continue
during the life or occupancy Of each mortgagor IN
the State? 1t might have been very unjust or CO.
PRECIOUS to have made such an enactment. out VINO
can deny their authority to have done so!
In Sturgis Us. Crowninshield, 4 Wheat 2OO, Chief
Justice Marshall SAYS: 1.-The distinction between
the obligation of a contract and the remedy given
by the Legislature to enforce that obligation, has
been taken at the BAR and exists in the nature OF
| things. Without imparing the obligation OF the
contract. the remedy may certainly be modified, as
the wisdom of the nation shall direct"
There is nothing unjust or immoral in conceding
this power to the Legislature. "A;l contracts are
made with full knowledge Of the parties that the
law making power may modify the remedy
The foregoing views ore presented upon the as
sumption that the Constitution of the United States
was operative and the supreme law of South Caro-
lima from the surrender of the Confederate armies
in April 1866, to July, 1868, when the present
| Constitution was accepted by Congress, and the
State admitted to representation.
But is such assumption true, in law Il mean the
legislation of Congress) or in fact? Take the re-
| con nstruction acts of Congress, and upon e1amin-
alton. what feature do they present compatible
with the theory that the Constitution was of force
or that its guarantees of the rights Of the States
was recognized by Congress? The legislation was
even more absolute than any previously applied to
the territories when organized or to their
acts when about TO apply for admission into the
Union It denied the State representation In both
branches of Congress-each State is entitled by the
Constitution to representation; end in the Senate
no State can be deprived Of its equal representa-
ton without its consent. It denied the right Of
the State to pass, and ignored all laws existing,
fixing the qualifications of voters. II prescribed
class of voters constituting large majority, who
should exercise the privilege, who had never be-
| fore been recognized as citizens. 1t denied the
right of suffrage to large class of the most intel
ieent citizens and excluded them from holding Of
fee under the new government. 1t 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 Jfaeto government then existing
WINS declared to be only provisional The military
was invested with nearly unlimited power, and not
unfrequently exercised it without stint in superce.
ding and annulling existing laws in the STATE, and
| b.. n;l;taru order orcaininp and enforcing new