The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1869-09-29
Tho Hdnesssad Act Unconst1tusional.


We refer our readers to the following
article, on this subject, Coming from
the pen of a distinguished lawyer of the
State, il deserves consideration:
Our judges, have rendered decisions
upon this act greatly at variance With
each other. Some fof these have been
published As .nfsi prius decisions, they
have NO general authority, and had better
not been publisned, as they are calcu-
lated to- iiisfead Rhd disappoint The
writer Of this hasilittie doubt but that
our Supreme Court will declare this Act
unconstitutional, so far as it is retroepec-
five, as impairing the obligation of con-
tracts. No authoritative decision can be
found to sustain the The decisions
OF other States have no authority. If
the Acts construed are similar to ours,
then they are entitled to confederation
nothing more. Often the grounds of
such decisions are entirely different.
Georgia, for instance, has q different
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 Constitution, South
Carolina was not, in the purview of the
United States Constitution, ga State"
This Question has passed the stage of
argument, for the United States Supreme
Court has decided the precise point in
Texas os. White, HoYard, ID. 726. I
would call especial attention to these
words in that deaisip1:: n sFhe obligations
OF the State as 9. member Of, the. Union
remained perfect and ounimpaired. It.
certainly follows that the State did not
cease to be State" Thissdecisioh must
have escaped the notice of,somel.of our
judges. for -theytare bound by it, 1t ,is
argued that the homestead provisions of
our Constitution are, made" Of force BY
becoming, bS Shdoption,''Sai Sah ACT Fof Cor
gress. Now Congress- could not give
any State theipower,to do what the Onf,-
stitutioap has forbidden. This proposi-
tion cannot al be seriously controYerted,
and is,conclusi9e of the point raised.
But Congress did not assume (as Is as
serted) tomake the Constitution OF. this
State an Act of Congress. Read thelAct.
XIV, United States Statutes, D. rs. and
nothing can be found therein in the
slightestto justify the epssumption. Tbe
preamble recites that. ffwhereas the ,peu-
pie OF South. Carolina have, framed O.
Constitution of State Government that,
is Republican, y y Therefors.
be it enacted that South Carolina ahnli
be entitled to representation in, Con-
gress." After all the stress that has
been laid upon the action OF Congress,
those wholread theA Act will be surprised
to find, that there is nothing else in it
bearing at oil upon this question. What,
now, did Congress enact? Nothing, be.
yond allowing this State representation.
And suppose we call the preamble an
enactment, then what follows? Why,
that the constitution is Republican.
Nothing more. Will any Judge pretend
that any legal enactment is covered by
the word republican," Or to come
more closely down, that this sanctions
the homestead clauses. Suppose, how
ever, that Congress had enacted, las is
assumed, without any foundation in
fact, that the Constitution Of South Ca
rolina should have the force of an Act of
Congress. This would not sustain
homestead provision antagonistic to the
Constitution of the United States. for
the constitution of 1868 itself provides
that nothing In ''in contrayention or
subversion Of the Constitution of the
United States, can have any binding
force" (Article I, Section 4, and the
''oath, Article II, Section 3O) Let us
hear no more about Congress having
given its authority to measure Which is
so directly in contravention of the Con-
stitution of the United States. But,
anirabile dictu, the Constitution of South
Carolina does not make retrospective
homestead provision. I challenge any
one to point out the clause. Article /.
Section 20, and Article II, Section 80,
make no provision that the exemption is
to apply to antecedent Indebtedness. Au-
thorities can be cited, al nausean, that
in the construction of constitutional or
statute law. all provisions are presumed
to be prospective, unless the contrary
be expressly enacted. Neither secession,
then, Congress or. the constitution Of
1868, authorized a retrospective home
stead law. Nothing is now left but the
naked Act of 9th September, 1858, XIV
Stats, p. 10. The provisions of that
Act are retrospective. The Act of 1868
at once falls as impairing the obligation
of contracts, by virtue of the prohibition
OF the United States Constitution, and
by the prohibition of our own constitu-
ton of 1868. Art. I, Sec. 21.).
do we hear any one bold enough to
say that retrospective homestead ex-
14a .