Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1871-05-26
The Homestead Law-0pinioa cf
Judge Keith.

In the case Of Brown Us Graves. involving the
constitutionality Of the Homestead Exemption
Law. argued before the Circuit Court of this
CITY on Tuesday judge Keith delivered thu
following opinion
The sole question to be considered in this
case is that arising upon the tonstitutionality
of the Homestead Law: passed June -. 1870.
That the Law is in conformity with the State
Constitution, at least 50 tar rs this case is con
cerned is not questioned. but it is contendcl
that the Constitution of the State is itself re-
nuenant to the Constitution Of the United
States. the Supreme Law Of tic land. and is
to that extent null and void II this nucs-
ton We're before me to BE- decided upon prin-
! ciplc uncmbarra>scd by authority. il would
present but little difficulty to my mind. but
inasmuch as similar provisions in the Con
stitutions and laws Of other States have been
the subject Of Judicial investigation with re-
suits not III accordance with my conc!llSiuiI<
have deemed it due to myself to review ana
consider the reasons which other Courts have
rendered ana the authorities UPON which they
have relied. The first point made by til.
Counsel for the defendant is that under The
Constitution Of the State this Conr has no
power to declare i law unconstitutional because
of its rcpugnancc either 10 the Constitution
Of the State or Of the | nitcd States: that
that power is conferred by the Constitution Of
the State upon the Court of Appeals and
that the concurrence Of three Of their number
is necessary to its exercise by that Court. In
reply to this point have only 10 say that if in
the exercise of the jurisdiction conferred upon
this court questions arise. ;l> III this ease. in
volying the constitutionality of law | am
bound to decide them in accordance with my
views of the laws Of the United States and
the State of Virginia; and the Constitution of
the State could never have intended to continc
its Courts to a one-slded view Of Il case and
compel its Judges to decide III i mali
ner contrary perhaps 10 their convictions
The second point made by the counsel for
the defendant was that the Congress of the
/. s accepted the Constitution Of the State
and that in consequence thereof the ConStitu-
ton of the State has all the force and effect
Of an Act Of Congress and that there is moth
ing in the Constitution Of the /. ). which
forbids Congress to pass law impairine the
obligation OF contracts Congress has the pow
CT not only to impair but to destroy the obliga-
ton of contracts but the mode in which that
power is 10 he eScrcI>c d is defined by the Con
stitution when it declares that Congress shall
have power to establish Eu;i1r0 liars on the
subject Of Bankruptcy throughout the United
States If therefore Congress had intended
by the Act admitting Virginia into the Mon
to give to her Constitution all the effect 81 one
of its own acts | should still be more than
doubtful as to its cffcc; in rccnnclin@ the
Homestead Clause 10 the Constitution 81 The
United States. For the power 10 impair the
obligation of contracts. otherwise than in thc
mode above referred to. is not in terms con-
fcrred upon it nor does it seem to be IN any
sense necessary to the execution "l either pow
H..
Congress: no such purpose was or could be-
within the purvcw Of the act re -admtting
the State. 1t remains then IL be seen whether
the Homestead Provision Of the State CnnSti-
tuition is repugnant 70 Article |. Sec. - Of the
Constitution Of the nilod States which pro
hibits any State from passing 4 law impairng
the obligation OF contracts. In support Of the
constitutionality Of laws Of this character TWO
theories are relied upon. both Of which have
been pressed with great zeal and ability II; tho
counsel for the Defendant. who has apparently
exhausted all the learning which could be
brought to bear in support Of his views II the
case. The first theory relied upon is that this
law affects not the obligation Of The contract
but only the remedy TO enforce it and that
the latter is entirely within the scope and I'M
der the control Of State authority miriam
melled by the Constitution and the case Of
Sturges vs.. Crownenshicld is relied upon
Judge Marshall says in that case that the dis
tinction between the obligation of the contract
and the remedy to enforce the contract exists
in the nature Of things. and far be it from me
to doubt or question the utteranceS Of that
great oracle Of the Law But let lie look for
a moment at the case before him and sec where
he int nGcd to tiZ the boundarv line between
the obligation and the rcnedv which has Of
late hccomc 81 ahadowv and indistinct as to
render it difficult TO say where the one begins
| and the other ends. hat case turned upon
! the conStitutonality Of an lnSolycnl and Bank
rupt Law Of the State Of New York which liberia
ted the person Of the debtor and discharged him
from all liability for any debt contracted pre-
viol> 10 his discharge on his sIlrrcndcring his
property III the mode prescribed, and it Was
contcndct III support 0t'that law. that the "h''-
aaiion ot'a conitncf c1uhi onjy hud " m"H To
pay /" Mc .t'W cr'"h Of his property. which IN
wolves OF course, the concession that q contract
does bind the debtor 10 pay 10 the tlll cy |
tent Of his property, and that any law which |
proposes to release or discharge any ,rirt nf |
the debtor <property from that obligation would |
TO that extent impair it, this, repeat, WIS the |
extent of the pretention$ Of those who
sustained the cOnsttutionality Of that law.
yet Judge Marshall, delivering the opinion Of
4 full Court. held that this was not ihr limit Of
the obligation. He says 1T is not true that par
ties have only in view the property Ill posses
SION when the contract is formed. Or that its OF
LEGATION does NOT extend to future ac,Illi<-
tons. Industry. talents and integrity consri-
tutc fund which is rs confidently trusted Us
property itself Future acquisitions are there
fore liable for contracts and to release them from
this liability inpairs their obi CATION This OK
tract shows clearly to ny mind that in the
opinion Of that Court the right Of the creditor
to resort to the property Of the debtor entered
into the obligation ofthc contract The right
of the creditor 10 appropriate the property of
the debtor in discharge OF the contract is the
Very lite and essence Of a contract. The made
by which the property is to be appropriated
pertains to the remedy TO say that the obi
cation is intact and unimpared when the cvcdi-
tors hands are withheld from the dcLtors prom t
erty which alone renders the contract valuable !
would be indeed Ito keep the word OF promise :
to the car TO break it to the hope would be to l