The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-10-07
HOYT & CO., Proprietors
The Constitutionality of the HON estead
Law.

ablest lawyers of the State, in which the
constitutionality of the Homestead Act
is denied. His views will be read with
interest and deserve consideration
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 authority, and had bet
ter not been published, as they sre calcu-
lated to mislead and disappoint. The
writer of this has little doubt but that
our Supreme Court will declare this Act
unconstitutional, so far as it is retrospec.
tive, as impairing the obligation of con
tracts. No authoritative decision can be
found to sustain the Act. The decisions
of other States have no authority. If
the Acts construed are similar to ours,
then they are entitled to consideration
nothing more. Often the. grounds of
such decisions are entirely different
Georgia, for instance, has different con-
stitntional provision, and the action Of
Congress upon that Constitution was diff
ferent from that upon the Constitution of
any other State. 1t is argued that at the
adoption of our Constitution, South Car
DINA was not, in the purview of the
United States Constitution, "a State"
This question has passed the stage of az
gument, for the United States Supreme
Court has decided the precise point in
Texas VS.. White, Z Howard, p. 726. l
would call especial attention to these
words in that decision "The obligations
of the State as member Of the Union
remained perfect and unimpaired. 1t
certainly follows that the State did not
cease to be State" This decision must
have escaped the notice of some of our
Judges, for they are bound by it. 1t is
argued that the homestead provisions Of
our Constitution are made Of force by
becoming, by adoption, an Act of Con-
gress. Now, Congress could not give
any State the power to do what the Con-
stitution has forbidden. This PROPOSE
tion cannot be seriously controverted,
and is conclusive of the point raised.
But Congress did not assume (as is as
serted) to make the Constitution of this
State an Act of Congress. Read the Act,
XIV, United States Statutes, p. 73, and
nothing can be found therein in the
slightest to justify the assumption. The
ureamblc recites that "whereas the pco-
ple 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
gress." 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 bear
ing at all 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. Moth
ing more. Will any Judge pretend that
word "republcan 2" Or to come more
closely down, that this sanctions the
homestead clauses. Suppose, however,
that Congress had enacted, Gas 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 a homestead pro-
vision antagonistic to the Constitution OF
the United States, for the Constitution of
1868 itself provides that nothing in it Sin
contravention or subversion of the Con-
stitution of the United States can have
any binding force" (Article /, Section
4,.and the seoath," Article II, Section 30)
Let us hear no more about Congress hav-
ing given its authority to measure
which is SO directly in contravention Of
the Constitution of the United States.
But, mirabile dictu, the Constitution of
South Carolina does not make retro
spective homestead provision. / challenge
any one to point out the clause. Article
I, Section 20, and Article II, Section 80,
make no provision that the exemption is
to apply to antecedent Indebtedness: Au-
thoritics can be cited, ad nauSeuna, that in
the construction OF constitutional or
statute law, all provisions are presumed
to be prospective, unless the contrary bo
expressly enacted. Neither secession,
then, Congress or the Constitution of
1868, authorized retrospective home
stead law. Nothing is now left but the
naked Act of 9th September, 1868, XIV
Stats, D. 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 Constitution
of 1868. Cart. I, Sec. q. .
Do we hear any one bold enough to
saw that retrospective homestead ex-
emption does not impair tho oohgatIon
of contracts, and is not violatve OF the
Constitution of the United States? If
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 Bank vs.; oharp,
wherein, after deciding Gas quoted by, one