The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1869-08-03

stitutional objection, that It impairs the
obligation Of contracts" when applied
TO existing contracts and liens, than the
legislation commented on above and
Fsapctioned by the Sppreme Court Of the
United States? q 4
In the case under consideration, the
remedy is changed by the Act to secure
. homestead. TIE defendant is entitled
90 . homestead during his life. IL lie con.
tinues in possession of it. Under the
former law, the complainant, OF fling
his bill to foreclose his mortgage, and
making proof of his demand, was emit
tied to an order to sell the mortgaged
premises, or q sufficient portion of them
to satisfy his debt, and the defendants
equity of redemption was forever barred.
The State, believing that it was an emil
nently wise policy to secure q homestead
to each head of o family, and prevent
the immigration of her citizens conse-
quent upon the general and indiscrimi-
nate sale of their homes, postpones the
remedy of foreclosure as to that part of
the tract whioh 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 can sell the balance
Could not the Legislature, in organic
ing the judicial system of the State, havo
provided that no judge should have ju-
risdiction of On application to foreclose
a mortgage for one year? And if for
one year, why not for ten or twenty
years? 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? It might have
been very unjust or oapricious to have
made such an enactment. but who can
deny their authority to have done so?
In Sturgis us. Crowninshield, Wheat,
200, Chief Justice Marshall says: "The
distinction between the obligation of q
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 modified, rs
the wisdom of the nation shall direct" I"
There is nothing unjust or immoral in
conceding this power to the Legislature.
''All contracts are made with a full know
ledge of the parties that the law-making
The foregoing views are presented 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 armies in
April, '65, to July, '68, 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 reconstruction Acts of
Congress, and upon examination, 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 Con-
gress? The legislation was even more
absolute than any previously applied to
the territories when organized, or to
their enabling acts when about to apply
for admission into the Union. Itdenied
the State representation in both branches
of Congress-each State is entitled by the
constitution to representation; and in the
Senate, no State can be deprived of its
equal representation without its consent.
It denied the right of the State to pass,
and ignored all laws existing, fixing the
qualifications of voters. It prescribed q
class of voters, constituting large ma
JOIlty, WHO SnOulu exercise Cn6 privilege,
who had never before been recognized as
citizens. 1t denied the right of suffrage
to large class of the most intelligent
citizens and excluded them from holding
Office under the new government. It
ignored the constitution and all laws of
the State prescribing the time, place and
manner of holding elections. It estab-
lished the military power superior to the
civil, and made the latter entirely subor-
dinate to the former. The de Jacto 60
vernment then existing was declared to
be only provisional. The military was
invested with nearly unlimited power,
and not unfrequently exercised it with
out stint in superceding and annulling
existing laws in the State, and by
military order ordaining and enforcing
new laws. It removed State officers,
with and without lawful cause, and APP
pointed their successors. The Governors
of Georgia and Mississippi were removed
early in 1867, and the Governors of
North Carolina and this State in 1868,
and successors appointed. Judges were
removed because they refused to carry
out military orders in their Courts. The
citizen was not only liable to be arrested,
tried, convicted and punished by militia
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