The Daily state journal. [volume] (Alexandria, Va.) 1868-1874, 1873-06-20

I
15g; Lsdd VI. Adams, ibid, IG4; Cooley
Con. Iiin., 1853, s8t. s1c,5 so2ls3s ssao5s
& The extent, force and effect of a lien
created by q State statute must depend
upon the Interpretation given such sta
tnte by the highest court of the State.
We have seen in the cases above cited,
that in this State Judgment lien is not
vested right. AS a remedy it may be
modified by the Legislature, ana any
! change that does not virtually destroy
the remedy, does not impair the obliga-
ton of existing contracts.
The homestead laws of this State do
not abolish Judgment liens, but merely
postpone the time Of their enforcement.
This modification of a legal remedy NAV
well be regarded as reasonable by a court
of justice which takes into consideration
the anomalous condition Of things exist
ing when the modification was made, and
that 1t was prompted by a wise and hui
name policy which must necessarily result
in the general public good. -.'T 50 -', IT,.
While the States are prohibited by the
Constitution from impaifing the obligation
Of contraetsr-eithe directly, or by yirtu-
ally abolishifigb existing remedies such
inhibition is imposedupo Congress-. The
power expressly conferred upon Congress
to enact uniform bankrupt laws, is. neces-
sarlly an express power to do away en-
tlrely with contracts, as such aIeSult is
the very object and essence OF bankrupt
laws. But it is insisted that while Con-
gress may have the paramount power over
contracts, it exceeded its authority in en-
acting that State exemptions shall be
valid against liens by Judgment or de-
cree of any State courts" This is equiya-
lent to saying that the contract may be
impaired, but the remedy must not be
iHterfered with--the priaciDal NAV be
destroyed, but the incident is protected
against legislative action.
There is nothing in the nature of liens
why they should be thus specially pro-
tected, as they are not vested rights but
there are strong reasons why they should
not be recognized and enforced by bank
rupt laws. The enforcement of liens is
certainly contrary to the policy of gem
eral system Of bankruptcy, the object of
which is to distribute the estate of an
insolvent debtor among all of fis credi-
tors. upon the principle that equality is
equity. Liens, upon general principles,
certainly deserve no special favor and
PtOlCCtiOu Ill DdIhTupL laws s-l++ IL ~
The Bankrupt Act, before the amend-
ment. OF March 3, 1873, in express terms,
avoids liens valid under State laws and
created by the levy Of an attachment with
in four months before The commencement
of proceedings in bankruptcy, and this
action of Congress IL generally conceded to
be constitutional. IA r.. ~
Congress has even interfered with uested
rights, for by the 35th section of the Bank
rupt Act, assignments and conveyances
made under certain circumstances are
avoided, although such assignments and
conyeyances are valid at common law and
under the laws ofthe State, and the parties
have acquired complete title and pos
session OF the property conveyed.
! have a very decided opinion that Con-
gress did not exceed the limits of its
Constitutional powers in enaeting the Act
Of March 3, 1878. 1 also think that
Congress, under its general powers over the
subject of bankruptcy, could avoid all
liens, whether existing by statute, by
usage, by express contract, or at common
law.
z Tie case OF Gum v. Barry, recently
decided in the Supreme Court of the
United States, has been called to nv
attention in the argument, and il worthy Of
my most careful consideration, as it is an
exposition Of the law by the supreme
judicial tribunal of the nation. The opin-
ion is read with great interest, both by
lawyers and laymen, in every section OF
the country, and the decision may result
in serious consequences to many of our
people. The questions Of law involved
have been frequently discussed by able
counsel, and have been decided differently
in many of the Supreme Courts Of the
States. The opinion Of Mr.. Justice
Swayne is not elaborate, and the questions
presented are not as fully considered as
had supposed they would have been, on
account of their importance and general
public interest, when the homes of tens of
thousands of our unfortunate citizens may
depend upon the decision, and when the
action Of so many state conventions,
legislatures and supreme courts may be
overruled. ~ s.: tssg-s 54st +...l5 4aa
The abstract principles decided in Gum
V. Barry. are announced in almost the
same language to be good law in Hill v.
Kesser in the supreme court of this state,
and the apparently different decisions in
the two cases may be easily recencled.
The decision in Gum v. Barry would have
been made in Hill v. Kessler under SIM !
liar state of facts. The exemption law of
Georgia gave homestead absolutely to
the debtor, and deprived the creditor of all
remedy. In Hill v. Kessler, it is conceded
that if q state abolish or injuriously change
the legal remedy existing at the time
contract is made, such action would be
void, as in violation OF the censtitu-
ton Of the United States. In both the
cases which we are considering it is agreed
that state may change legal remedies pro-.
vided such changes does not impair sub
stantial right. Such changes are usually
made to meet some new condition of things,
and is influenced by reasonsof public policy.
The legislature is the proper bodylto consider
and act uponiquestions OF lbliepolicy. and
the legislative will upon such subjects,
ought to be regarded as the law Of the land
by the judiciary, unless it is manilestly in
violation of the constitution.
Imprisonment for debt was remedy in
this State for the enforcement of contracts.
The legislature thought. this remedya relic
of barbarism and bought not to exist in
free, enlightened and Christian State, and
such remedy was abolished. The eonsti-
tutionality Of this Legislative action would
be sustained in any court, although 1t
impaired existing and substantial rights.
The enlightened legal principles that
control this question will certainly sustain
the homestead laws of this State, upon the
grounds of humanity and wise public
noliev faphese laws dn nnf dastrov veetad