The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1872-07-12
The Retrosp ective Feature OF TIE
HON essead Act.

tanned 50 many DiuitutiSt pHa' W. 70 = 49,
the Wytheyillc Enterprise, thought proper
to notice it. We did so very briefly; the
Esterpr,se Mt greater length. We copied the
latter papers comments. The nature OF tue
article commented upon. as well as the TACT
that the same article appeared IN Richmond,
Lynchburg. Siaunton, and many other pa
pcrs. induced us to believe that it had been
written by some general assignee in bank
rrptcy. or by some lawyer whose practice
was confined to bankrupt eases, and tm' ID
was intended TO deceive the public. we 10
not now say that UNDERWOOD wouid not feh-
der lust such decisions rs the article III Iucs
ton assumed that he wonld but we 10 sly
that Judge Boxp, Vile Radical though he be,
will not allow such decisions 10 stand. 10
our surprise, highly respectable gentleman
of Aibemarlc, who is. we suppose, Il lawyer,
ends us letter ayowing himself to be the
aufhor of the article we are speaking of. lie
writes IA follows
TO the Editors of The Richmond Dispatch:
In your paper of the Sth instant i OBJ
served an extract from the Wytheyille Enter
W2Sg TcflCWlbi- III ai abtiiSapis Sp'ie "
Communication written by me relative to the
recent amendment Of the bankrupt law by
an act of Congress passed on the I'd OF June
last. ..-. .... -. ~.
Waving all exceptions to the general tenor
Of the article in question. and to the evident
want of information upon the subject, which
characterizes the article named, proceed TO
answer what the Enterprise considers very
strong points raised by that journal.
Twill premise by observing that the true
mode of arriving ut the meaning OF Il rene
dial law, as we are informed by Blackstone
and all other elementary writers on the sub
icct, is to considcr-First. The old law
Second. The mischief intended and Third
The remedy.
Now, applying these plain rules Of con-
strllction, what is the result? First. The
old homestead law, as passed by the Convcn-
ton of Virginia, was regarded as 'nopcfdhtc
It's a State idtC. Second. The mischief was
that ii was expected that the law wouia hc
declared unconstitutional as to antcccdcnt
debts by the Virginia Court. of Appeals.
Third. The object of the amendment was TO
give effect to the homestead in Virginia by
making the homestead part of the bank
rupt law of the United States.
Ii the WythcvIlc Enterprise has any
doubt on this subject let lin consult Senator
Lewis 1.-THE patron of the bill in the Scnatc),
or his own ncighbOr and political friend
Senator Johnston.
1t is obvious that the Enterprise docs not
at all apprehend the questions discussed by
"Albemarle" Speaking of the idea advanced
heretofore by this writer on the subject OF
the bankrupt amendment, the Enterprise
confounds all rules OF construction by saying,
s'But the Virginia Court of Appeals decides
that the homestead, as applied to anteccdcnt
debts. is unconstitutional" Sc. This also
"Albcnarlc" stated and tried to show, was
a proper decision Of that respectable tribunal.
But the Enterprise proceeds step further,
and adds: This part of the homestead pro-
vision is of no more effect than if it had
never been put into the Constitution ut al"
On this remark that Congress by inserting
the exemptions of 1871 in lieu of those of
1864 adopted the Virginia homestead as an
integral part of the bankrupt law, and thus
legalized it. Such was the meaning OF both
Houses of Congress, by whom the change
was unanimously adopted and if sucil was
not tie meaning, then there is no operation
to the act whatever.
The Enterprise asks, with great confidence
and ndirfte, Docs 'AlbcInarlc' intend To
say that the law of Congress will operate to
vitalze this nullity? Does he wish to con-
vcy the impression that Congress can over
ride or set aside the decision Of the State
court and declare that to be valid us an cX-
cmption under the bankrupt law which is
not so under the State lawi'
With all the Difference which cable
marie" feels, and is willing to confess, for
the superior illegal acllmcn " of the Enter
prise, he has no hesitation in answering
both these very profound questions most dc-
rdcdly in the atrmatre.
1t is not hard to comprehend that the home
stead, in its retroactive operation, can easily
be unconstitutional rs n State law, and yet
be perfectly constitutional as part OF gen
eral bankrupt law; and this because the
Constitution of the United States prohibits
States from passing "any law impairing the
obligation of contracts" but expressly con-
ters that power upon Congress within GER
tain restrictions.
IT'S bootless to pursue this subject fur
Their but | cannot refrain from asking the
Dispatch and Enterprise both, What was the |
llse of the conventions of both political par
ties of Virginia ; OF both parties, with almost
entire unanimity, in the Legislature, petit
tioning Congress to incorporate the home
stead in the Virginia Constitution into the
bankrupt law, and of Congress complying
with the earnest expressions of the wishes
Of our State, if the whole affair, when en-
acted, could be set aside on such ilimSy
grounds and for such futile reasons as those
urged by the Wythvile ENTERPRISE
ALDEMARLE.
"Albemarle" is in error. He and MIR.
LEWIS and others may have intended to ac-
complish the purpose which he claims to have
accomplished. but il 80 they were wotully
mistaken. Congress in passing the amend
ihcnt did not intend to remedy any such
"mischief" as " Albeuarle suppOses it did.
The report Of the debates in the GLOBE shows
this to be the fact. When BLACKSTONE tells
us how to construe laws, he does not mem
that. we shall 60 to outsiders to ascertain
what the law-making power intended to
effect, but to the legislature itself. In this
case, we look first at the old law; secondly,
ut the mischief" intended by Congress, not
by Mr.. LEWIS and the bankrupt lawyers, to
be remedied; and. thirdly, the remedy.
Thus looking, we find that practically there
was no exemption worth speaking of in
Virginia under the operation of the bank
rupt law. Congress gave us and al other
States the exemption allowed by our several
homestead laws us the remedy. 1t gave us,
not what it deemed a proper exemption, but
what we deemed such, leaving each Suite to
decide for itself.
Now, what was the exemption allowed by
the homestead law on the LIST day Of january,