The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1886-01-29
Anaconda Mortgages

Ulct between HeDLDf anu CTtultpI, HAS
just been made by the United States
District Judge, Caldwell, ia an address
delivered before the State Bar Associa-
ton Of Arkansas. The address is re-
1arkable 10 the important particular
that it radically differs IN tendency from
what might have been expected from an
eminent lawyer Usually the legal
minds Of the world are to be found reas.
oning on the side Of the creditor; argu
ing In favor Of the maintenance Of all
the safeguards that the Law throws
around the wise, the wealthy ard the
strong; ignoring the claims Of the poor
and the weak to protection, aud general
ly refusing to recognize the iundamen-
tai principles of human justice in an un.
waycring devotion to the ancient ways
of opprcssion-and fees. "The right8of
property" il a phrase that has been used
80 frequently in totally one.sided and
unjust way that the reverence due to its
real meaning has come to be supersti
tous worship Of its perverted power.
The creditor has no more right TO injure
the pebtor's estate than has the
debtor to injure the creditors Nor
is the creditor any more likely
to he an honest man than the
debtor, yet all collection laws in all
times and all countries have been fran
ed on the presumption that such is the
case. Judging from common experience,
especially where professional money
lenders and mOney-lending corporations
are concerned, the converse, rs Judge
Caldwell pointed out. is much more like
ly to be the case.
The barbarities of the ancient Roman
and the ancient Greek laws concerning
debt are well known; they have their
parallels IN this day only among the
savage tribes of Africa and of some of
the Pacific isles. In later years the
almost equal cruelties of the English
laws, under which debtor could be
imprisoned at the will and during the
pleasure of the creditor, aroused the
Indignation of all civilized mankind.
These laws were adopted into the
statutes bf various of the Eastern States,
but have all since been repealed, yet
there remain many OF the most perni
cious principles on which they were
based in active operation in every State
of the Union. Judge Caldwell natu.
rally directed the shafts of his eloquence
solely TO affairs as they exist in Arkan-
sas, and he made such showing as will
necessarily set men thinking, il it does
not largely aid in bringing about II
reform of the laws in the interest of
honesty, humanity and sound political
economy.
"There Is popular belief" said the
Judge, "that we now have enlightened
and liberal exemption laws in this
State, but it is popular deusiou.
Practically, we have 40 exemptions
at AL There is no inhibition against
eucumberng the homestead and per.
sonal property exemptions" 1t is
strange to hear from so eminent an
authority this sweeping assertion, while
in sentence further down in his address
ho quotes the Constitution of Arkansas
of 1868, which expressly declares that
1.-THE homestead of any resident OF this
State who is a married man or head of
a family shall not I've encountered in any
manner while owned by him, except for
taxes, Ahorers and mechanics liens and
securities for the purchase thereof
The apparent contradiction is made to
! disappear, however, in the statement
concerning subsequent legislation OBJ.
tanned at the instance Of certain foreign
money lending corporations. They sue
ceeded in getting IL law passed which
enables the borrower OF money to waive
in his mortgage deed the right of APP
praisement, sale and redemption on all
of his property, including the homestead.
The way in which the mortgage system
now works is described to be, first, Il
waiver of all exemption right; second,
Il payment of 20 per cent, of the prlucl,
pal sum borrowed as commissions; >
third, the payment of all costs for search.
ing the records, aud the like; fourth, the
maintenance of Improvements and
insurance, for the benefit of the
mortgage; fifth, an agreement that sale
in case of derelicIiun of payment shall
be made by the trustee without going
into court; SIKH, the payment of the
trustees expenses aud all the fees of the
mortgages lawyer for collecting the
mortgage; and, seventh, the payment of
from s 20 10 per cent. interest on the
principal sum borrowed, including. of
course, the one fifth withheld as Com
Missions
The act of the Legislature under
! which, in evident controversion of the
| intention of the Constitution, such a
system became possible, was obtained
on the old familiar plea that the intro
duction of foreign capital into the State
must be beneficial But, in reply to
this plausible looking argument, Judge
Caldwell said: whether borrowed
money brought into the state adds to
the capital of the borrower aud enriches
the State, depends upon the question
whether the borrower can make more
profit out of the use of it than he pays
for it," 1t is obvious that if the cost is
more bundensome than the re-
turns can pay, instead of profit
there must be a loss both to the
individual and the State, and the