The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-09-25
THE HOMESTEAD ACT UNCONSTI-
TUTIONAL.
TO THE EDITOR OF THE NEWS.

TO THE EDITOR OF THE NEWS.
Our Judges have rendered decisions upon
this act greatly at variance with each other.
Some of these have been published. As nisi-
prius decisions they have no general authorl-
ty, and had better not been published, as they
are calculated to mislead and disappoint.
The writer Of this has little doubt but
that our Supreme Court viii declare this act
unconstitutional, so tar as it is retrospective, as
impairing the obligation of contracts.
No authoritative decision can be found to sus.
tain the act. The decisions of other States
have no authority. If the acts construed are
similar to ours, then they are entitled to con-
sideration-nothing more. Often the grounds
of such decisions are entirely different. Geor-
gia, for instance, has different constitutional
provision, and the action OF Congress upon
that constitution was different from that upon
the constitution OF any other State.
| It is argued that at the adoption of our con-
stitution, South Carolina was not, in the pur-
view OF the United States Constitution, "a
Stkte."n This question has passed the stage OF
argument, for the United States Supreme Court
has decided the precise point in Texas vs..
White, Howard, p. 726. I would call especial
attention to these words in that decision: 1.-THE
obligations of the State as member OF the
Union remained perfect and uuimpaired 1t
certainly follows that the State did not cease
to be State" This decision must have escap-
| ed the notice of some Of our judges, for they
are bound byit.
1t is argued that the homestead provisions
| of our constitution are made OF force by be-
coming, by adoption, an act OF Congress.
Now, Congress could not give any State the
power to do. what the constitution has forbid
den. This proposition cannot be seriously
controverted, and is conclusive of the point
raised But Congress did not assume (as is
asserted) to make the Constitution of this
State an act Of Congress. Read the act, AV.,
United States Statutes, p. 73, and nothing can
be found therein in the slightest to justify the
the assumption. The preamble recites that
.whereas the people of South Carolina have
framed constitution OF State government that
| is republican,,
Therefore be it enacted that South Carolina
shall be entitled to representation in Con-
cress." After all the stress that has been laid
upon the action of Congress, those who read
the act will be surprised to find that there is
nothing else in it bearing at all upon this ques-
tiop. What, now, did Congress enact? Moth
ing beyond allowing this State representation.
Aud suppose we coll the preamble an enact
ment, then what follows? Why, that the c onr
stitution is republican Nothing more. Will
any judge pretend that any legal enactment is
covered bv the word republican Or 10
come more closely down, that this sanctions
the homestead clauses.
Suppose, however, that Congress had enact
ed, las is assumed without any foundation, in
fact,) that the Constitution Of South Carolina
should have the force Of an act Of Congress.
This would not sustain homestead provision
antagopistc to the Constitution OF the United
States, for the constitution of 1863 itself pro-
vdes that nothing in 1t "in contravention or
subversion Of the Constitution of the United
States can have any binding force" (Article 1,
section 4, and the ''oath," article II, section
9O.) Let us hear no more about Congress hav-
Jog given its authority to measure which is
40 directly in contravention Of the Constitu-
ton Of the United States.
But, n,irable dictu, the Constitution OF South
| Carolina does not make Retrospective home
stead provision! challenge any one TO point
out the clause. Article I, section 20, and arti.
Gle II, section 81, make no provision that the
exemption is to apply to anteceden indebted
ness. Authorities can be cited, dd ndusedrn,
| that in the construction Of constitutional or
statute law, all provisions are presumed to be
prospective, uness the contrary be expressly
enacted.
Neither secession, then, Congress or the con-
stitution of 1868, authorized retrospective
homestead law. Nothing is now left but the
naked act OF 9th September, 1868, XIV State,
D. 49, The provisions Of that act are retro
spectve.
The act Of 1868 at ones falls as impairng the
obligation of contracts, by virtue OF the pro.
hibiton of the United States Constitution, and
by the prohibition of cur own constitution Of
1868! (Art. /, sec 21.l
Do we hear any one bold enough to say that
q retrospective homestead exemption does not
impair the obligation OF contracts, and is not
| VlOlAtlV0 VI tuc OOucttuliOu VI VI" SnA'SN
States II 30, we merely reply by citing the
decision of the United States Supreme Court,
(Which is binding upon our judges,) in the
case of the Planters Bunk W. Sharp, wherein,
after deciding (as quoted by one OF our judges)
that States can pass laws exempting a home
stead and tools, &c., the court makes this
qualification, which, We thiuk, ought not to be
overlooked having slight bearing upon the
question. "Again, State insolvant laws, if
made like this law, to apply to past contracts,
and stop suits on tbem, have been held not 10
be constitutional, except so far as they dis
charge the person from imprisonment. When
so restricted, they do not impair the
obligation of the contract itself, because
The obligation is left in full force and
actionabe, and fatule property, as we'll
as present, subjected to it's payment. Where
future acquisitions are attempted to be exone-
rated and the discharge extended to the debt
or contract itself, if done by States, it must
not, as here, apply to past contracts, or it is
held to impair their obligation" This case,
then, goes to the extent OF not only not allow
ing an exemption to be made Of property
which debtor o,cns. but not even OF what he