The southern enterprise. [volume] (Greenville, S.C.) 1854-1870, 1869-08-11

this subsequent legislation2 The
supreme Court say, no.
Is the enactment of a homestead
law, which is sanctioned by gen
erous humanity for the wives and
children Of unfortunate or i'm
provident husbands and fathers,
any more obnoxious to the consti-
tutional objection, that it impairs
the "obligation of contracts" when
applied to existing contracts and
liens, than the legislation comment
ed on above and sanctioned by
the Supreme Court of the United
States. .. ..... ..,.t ...
In the case under consideration,
the remedy is changed, by the act
to secure a homestead. The de-
fendant is entitled to homestead
during his lite, if he continues in
possession Of it. Under the form
er 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
mortgaged premises or a sufficient
portion of them to satisfy his debt,
and the defendants equity or re.
demption was forever barred. The
State, believing that it was an EN-.
inently wise policy to secure q
homestead to each head of fami
~, and prevent the immigration
Of her citizens consequent upon the
general and indiscriminate sale OF
their homes, postpones the remedy
of foreclosure as to that part of the
tract which may be assigned, dur
ing the life or occupancy of the de.
fendant. He can forthwith pro
ceed to sell that part of the tract
not assigned, and when the contin.
gency provided for in the Act ar.
riees, terminating the rights of the
defendant, he can sell the balance.
Could not the Legislature, in or.
ganizing the judicial system Of the
State, have provided that no Judge
should have Jurisdiction of an ap,
plication to foreclose q mortgage
for one year2 And if for one year,
why not for ten or twenty years
If for one or twenty years, would
it not have been equally compe.
tent to have made the prohibition
continue during the life or occu-
pancy Of each mortgagor in the
Statea 1t might have been very
uni just or capricious 70 have made
such an enactment, but who can
deny their authority to have done
so?
In Sturgis Us. Crowninshield. 4
Wheat, 200, Chief Justice Marshall
says: "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 impair.
ing the obligation of the contract,
the remedy may certainly be mod,
flied, as the wisdom of the nation
shall direct."~
There is nothing unjust or i'm,
moral in conceding this power to
the Legislature. "All contracts
are made with q full knowledge Of
the parties that the law-makine
power may modify the remedy"
The foregoing views are present
ed upon the assumption that the
Constitution of the United States
was operative, and the supreme
law of South Carolina, from the
surrender of the Confederate ar
mics in April, 1865, to July, 1868
when the present Constitution was
accepted by Congress, and tn,
State admitted to representation.
But is such assumption true, il
law (I mean the legislation of Con
gress) or in facts Take the recon
struction acts of Congress, and up
on examination, what feature dc
they present compatible with the
theory that the Constitution was
of force or that it's guarantees Of
the rights of tho States was recog
nized by Congress The legisla.
ton was even more absolute than
any previously applied to the ter.
ritories when organized, or to their
enabling acts when about to apply
for admission into the Union. II
denied the State representation il
both branches of Congress-each
State is entitled by the Constitu
tion to representation and in the
Senate, no State can be deprived
Of its equal representation without
it's consent. 1t denied the right o.
the State to pass, and ignored al
laws existing. fixing the oualifica