The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-06-04
How the Bankrupt Law is Understood
in North Carolina.

How the Bankrupt Law is Understood
in North Carolina.
The able North Carolina lawyer VINO n's
heen discussing with us the question OF 'ne
consti,utionality of the amendatory BANK
runt law of March, 1878, furnishes in his hst
article remarkable Illustration OF the truth
th,t No Isw can well be understood unless
its history is known. In reply to our re-
mark that certain words In that law were in.
tended to override the decisions OF the State
courts Of Virginia, he says
Does Il mean anything Of the Kind? Does II not
mean that said exemptions shall be allowed the
bankrupt. adjudcated such under the bapkrnp'
law OF Congress, unless Federal court OF cofnpea
tent jurisdiction decides tha, Il Is ,ns. tut es
shalt only be determined oy Il Federal tribunal
We reply that the act was intended for no
such purpose It was intended to override
the decision of the Court of Appeals OF
Virginia. The bill was drawn up by R. w.
HuGuss Esq, of this State, and he, in let
ter to us, published in the Dispatch Of March
90, 1873, says:
But the courts in Virginia in constituting this law
Of Congress and these lhomestead] laws Of Virginia
ruled out of consideration all debts existing prior TO
1870 refusing TO give the homestead as against those
old debts. 1t was also feared that even the U1ite
States courts would so hold old debts upon which
hs s, ss ham pos eh the words seen
tsrcon,' employer in the seventh clause of eXcep-
zion above reciied THAT is, in the Virginia home
II wa this action of the courts In Virginia, viz
tuslly nullifying an important and most beneiecnt
provision OF congressional statute and OF n State
Constitution adopted by the almost unanimous
popular voice of Virginia. which the explanatory
net was framed for the accomplishment of two OBJ
jectsrst TO give the homestead against debts con.
debts secured merely by liens OF Judgment or de-
cree.
We think Mr.. HUGHEss testimony suffi-
cient to settle that point. Our Raleigh friend
should now confess that the amendatory
bankrupt law is unconstitutional, since he
would hardly have taken the trouble to use
the language we have quoted above if he
had not considered it unconstitutional for
Congress to attempt to override in the man.
ner indicated the decision of State court.
Again Mr. HUGHES proves that State
court in Virginia cannot allow person to
hold his homestead against debts contracted
before the law was passed nor against certain
Judgment liens; because, first, the State
courts are all bound by the decisions of the
Court of Appeals, and this tribunal has de-
cidcd that it would be violation of the
Federal Constitution to allow retroactive
operation to tue homestead law; and, Sc
condly, the homestead law itself does not
allow any person to hold bis homestead as
against these judgment liens. The new
bankrupt law, Mr. HUGHES tells us, was in
tended to override these State laws, and to
enable the bankrupt to hold his homestead
rs against debts which the State courts and
.,ra!e laws did not allow him to leave I'M
,,ald. Ina word, as The highest court in the
State decided that il would be unconstitu-
1ional TO allow homestead as against debts
contracted before the passage of the home
stead law. it in effect decided that there was
no law in Virginia which so allowed home
stead. The act Of Assembly, as to this fea-
,,,rc, was null and void al tnitio. Congress
thereupon undertook to make Il State law
for Virginia. OF, TO phrase it otherwise, un-
tcItook TO vitaliZe an unconstitutional law.
And this last is exactly what the Supreme
Court of the United States, in the Georgia
case, decided that Congress could not do.
Therefore the amendatory bankrupt act is
unconstitutional.
Once more Our Raleigh friend, who con.
cedes all that we ask, and conducts the dis
cussion with admirable temper, shows that
whilst he is too good lawyer to deny that
il bankrupt law must be uniform in order to
be constitutional, be does not understand the
bankrupt law as it is understood in Virginia
Read what he says:
But the Dtspotch thinks Il am right In the con
r"n on e. deuty to a into greater Con
ns Pp0 to e u
laws, or the Tact that 1t likes the amour, itself"
- According to the rule laid down by the
ing that the law is uniform. This uniformity accord
ing to the Dispotch, may be derived from thu
language Of Justice Miller, 1t may be uniform
.anoHgn the Stale, by respecting alike tho laws o
aceer d TO Se sssw Of law
not adopt the exemptions fixed by the laws Of caci
State as the measure Of Its own exemptions II
in others? Does 1t not apply the same
ni the respective States, respecting the exemp-
ton laws OF each State alike 1t does not change
The Virginia law nor the laws of any other state
II does not adopt sub n0d0 the homestead laws o.
Virginia. or any other State 1t Incorporates the ex
empions OF the respective States US the measure
Of its own exemptions In said States, us upfOrml,
Of the TIere COULD mot paS
the other. The decision of Justice Miller in tn,
Missouri case IS applicable to the law Us Il now Is
Us IL was TO me law us II tleu was The subSeuuen
of the law that can see. ii it was uniform tlier
II Is uniform now.
Our Raleigh friend here in effect admits
that if the new bankrupt act does not adop,
"the exemptions fixed by the laws of each
State as the measure of its own exemptions
In each " it is unconstitutional Well, thi,
is exactly what it does not do in Virginia, as
we have already shown. The Virginia law
does not allow a homestead as against certain
judgment liens. The bankrupt law does
The Virginia law does not allow home
stead as against debts contracted before it:
passage. The bankrupt law does. 1t may
be replied that a bankrupt law must neces
sarily be retroactive. We agree to this. Bu
if it is to be constitutional, the bankrupt Law
itself must fix the amount that is to be eX
empted and the debts that are to be eN
empted against, and not pretend in on,
breath to respect the State law and in tn,
next attempt to override the State law.
Our opponent also admits in effect that
the new bankrupt law "adopts the whole o