The Daily state journal. [volume] (Alexandria, Va.) 1868-1874, 1872-09-30
The Homestead Exemption in bankruptcy
An Able Exposition by Hon. Robert w.
Hughes
ABINGDON. Sept, Is. 1S72

Mr.. Henderlite, and answer your enquiries
by this publication. address YOU as one
Of the people, practically knowing their
distresscs and acquainted with their needs.
My letter to Mr.. E. S. Watson, of the
26th Of July last, on the Homestead Ex-
emption in Bankruptcy, has been assailed
in the newspapers and on the stump. The
best vindcation of its positions will be
found in the plain facts Of the case, which
are as follows:
The National Constitution empowers
Congress to pass uniform laws on the
subject of bankruptcies throughout the
United States giving Congress the power
to abrogate contracts. But it declares
that no State shall pass any ld,o impair
ing the obligation of contracts"
The war reduced many thousands of the
Virginia people from affluence to hopeless
Indebtedness, most of which was in the
form suretyships. The Legislature pass
ed stay-laws, but authorized suits and
cruelty stimulated suits by giving the liens
of judgments priority in the order of their
dates. The Republican party of Virginia,
in the convention for framing State Con-
stitution, which sat in 1868, designed to
provide relief for the large class on which
the war had wrought pecuniary ruin, by in
sorting in the State Constitution the follow
ing provision
Act XII, Sec.l Every householder or bead of
family shall be entitled, in addition to the ar
ticles now exempt from levy or distress for rent
10 hold exempt from levy, seizure, garnsheeing
or sale under any execution, order other pro-
cess issued on any demand FOR any DEBT heretofore
6rhereGffer contracted, his real personal prop
erty, Or either, including money debts due
him, whether heretofore or hereafter acquired or
contracted, to the value of not exceeding two
Thousand dollars. to be selected by him, &C.
The words heretofore or hereafter" en-
ployed in this clause, expressly and inten-
tionally included old debts as well as new,
and refer to the date of the completion of
the Constitution of the Convention, namely,
the 18th day of April, 1868.
The people of Virginia, on the 9th day of
July, 1869, adopted the Constitution em-
bodying the above article, by vote of
2l0,5S5 for, to 9,136 against it. The
adoption of this Constitution by the peo-
pie, was not ''passing laac,' within the
terms or meaning of the clause in the Ma
tional Constitution forbidding State from
passing any la,c impairing the obligation of
contracts. This position has been ably
maintained by the Attorney General Of the
State, Mr.. James G. Taylor. This home
stead provision of the State Constitution
was, on the contrary, itself contract
among and between the people, modifying
and substituting, by mutual agreement, all
former contracts which had subsisted be-
tween them, individually and collectively.
1t was clause of contract in an instru
ment which. in all its clauses. was Social
Contract.
The people, acting in their sovereign ca
pacity when framing Constitution OF gov
eminent, have unlimited power to change
or abolish every part of the old govern
ment, including all the machinery for en-
forcing debts; and there is no condition
imposed upon them by the National Con-
stitution but the single one that the substi-
tuted government shall be republican in
form. fredericksburg changing an ole and
making a new government, is not passing q
laso in the sense intended by the National
Constitution in the clause that has been
cited.
Before the present Constitution or con-
tract was entered into, one with the other,
by the Virginia people, Congress, actuated
by deep concern for the distresses of the
people, inflicted by the war, had passed
the general bankrupt act of March Cd,
1867, which, in one of its clauses, pro-
vidcd that there should be exempted, for
the use of the bankrupt, besides $500 as
against old debts and new, and besides
other things, such property as as exempted
from levy on execution, or other process or
order of any court, By the la,os of the State
IN Which the bankrupt has las domtcile, &C.,
&c., to an amount not exceeding that
allowed by such State exemption laws in
force in the year 1864"
As the present Constitution of Virginia
was not framed until 1868, nor adopte d
until 1869, the homestead exemption of
$4,000 which it allowed, could not be al
lowed by the bankrupt courts under tie
provision Just recited, limiting the allow
ance to that given by the State laws of
1864. Therefore, the Republican party,
(which is always true to the dictates of JUS
tice and alive to the dstresses of the peo-
ple), adopted, in the State Convention OF
the 18th of April last, the following reso-
luton, calling upon Congress to amend the
bankrupt act so as to give the exemption
in bankruptcy allowed by the eleventh
article of the Constitution OF the State.
The Republican State Convention said:
s. The wise provisions of the homestead clause
in our State Constitution have been ignored by
the Judiciary or ruled upon in such manner 3
to deny to our people its intended benefits.
suffering ueDtOrS ma no adequate upon
appeal to the state courts or Legislature but
are compelled to see the little wreck OF property
left them by the war sacrificed under the sher-
IFS hammer at forced sale and themselves and
families left houseless and beggars
In view of these facts, the Republican party OF
Virginia, as the author of the homestead clause
and its advocate to the present time, believes
the eItensio Of the exemptions under the general
bankrupt act so as to include the homestead erenlp
tioa ulder our State Constitution TO be the only
mems Of relief now offered to our people, and
they therefore ask Congress to pass the amend
lnent to that effect offered in the Senate by the
Hon. John F. Lewis, and hereby pledge them
selves to the support of this m easnre.
| ought to know what the Convention
intended by this resolution, for it was or
my own motion that the resolution was
adopted. The Legislature Of Virginia
also, OF its last session, induced by its Re.
publican members, on the 18th day o
March, 1872, petitioned Congress to allow
the same exemptions in bankruptcy as
were specified by the eleventh article o
the State Constitution of Virginia. The
following are the resolutions it adopted:
l.. Resolved by the Senate (the House of Dele
gates consurring), That the Congress OF tht
United States be respectfully requested T.
amend the bankrupt act in such manner as VII
secure to persons taking its benefits in Firgini
an exemption equal in amount TO that alloWe'
by the homestead act OF the State.
2. That copy of the foregoing resolution b
transmitted to Congress, and that our Senator
be instructed and our Representatives requested
to take such steps as they may deem best TO so
cure the said amendment.