The Orangeburg news. [volume] (Orangeburg, S.C.) 1867-1875, 1873-06-28

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power to do away entirely with contract s
as such result Is tie very object and
essence Of bankrupt laws. But it is
insisted that .whiles Congress NAV have
this pa ramount power over contracts, it
exceeded its authority in enacting that
State exemptions sh!sl be valid against
liens by judgment OF decree OF any State
courts" This is e@aivacnt TO saving
that the eonfract ma be impaired, but
thercnse.iy must NOTICE interfered with
the principal may he destroyed, but
incident is protected against legislative
There is nothing in the nature Of
liens why they should be thus specially
protected, sthey arc not vested rights (;
but there are strong reasons why they
should not be recognized and enforced
by bankrupt laws. The enforcement of
liens is certainly contrary to the policy
of general system of bankruptcy, the
object of which is 70 distribute the es.
tate of an insolvent debtor among all of
his creditors, upon the principle that
equality is sequity, Liens, upon general
principles, certainly aeserye no special
favor aud protection in bankrupt laws.
The Bankrupt Act, before the amend
mont of March 3, 1873, in express
terms avoids liens valid under State
laws and created By the levy of an at
taeis:nept within four mouths before the
commencement of Proceedings in bank
rnptcy, and this action OF Congress is
generally conceded tosbe constitutional
Congress has even interfcred with
oestert rights, for by the 35th section Of
the Bankrupt Act, assignments aud
eonveyances u.adc under certain circum
stauces are avoided, although such as.
signneals and convcyanccs are valid at
common law and under the liws Of the
State, and the parties have acquired Il
complete title and possession Of the pro.
perty- conveyed.
have very decided opinion that
Congress- did not escesa the limits Of its
Institutional powers in cnac,ing til.
ct oS March 3, lS73A / also think
th"t Congress, under It's general powers
over tie subject of bankruptcy, cou!u
avoid all lleus, whether existing by
statute, by usage, by express CONTRACT,
or at common law
The case Gum V. Barry, recently
decided in the Supreme Cour, Of the
United States, has been calcl TO my
attention iu the Argument, and is wor.
thy Of my most careful consideration as
it is au exposition of the law by the
supreme judicial tribunal of the nation.
The opinion is read with great Interest,
both by lawyerS and laymcn, in every
section OF the country, aud the decision
may result in serious consequences to
many of our people The questions of
law involyed have bcrn fre Iuon,ly dis
cussed by able counsel, aud have been
decided differently in many of the Su.
prcme Courts of the st tcs. The opip-
ion Of MIR. Justice Swayne is not clabor.
ate, and the questions presented are not
Us fully considered as had supposed
they would have been, on account Of
their Importance aud general public
interest, when the homes of tens OF
thousands Of our unfortunate citizens
may depend upon the decision, aud
when the action of SO many state con.
vcntions, legislatures aud supreme
courts may be overruled.
The abstract principles decided in
Gum V. Barry, are ann ,uuccd in nj.
most tho same language to be good law
in Hill v. Kesslcr, in the Supreme
Court of this State, and the apparently
different decisions in the two cases NAV
be easily reconciled The e:ison in
Gum ". Barry woald have been made
in uill V, Kcsser under similar state
of facts. The exemption Law oe & cor
gie gave a homestead absolutely to the
debtor, and deprived tho creditor Of all
remedy. In Hill V. Kcsslcr, it is cou
ceded that if State abolish or luxurious.
ly change the legal remedy existing at
the time contract is made, such action
would be void, as in violation of the
Constitution of the United States. In
both the cases which we are considering
it is agreed that State may change
legal remedies provided such change
does not impair q substantiafright.