The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-02-03
Anaconda Mortgages:

District Judge, CdiuWtii, III al :
delivered before the State Bar Assocla- d
ion of Arkansas. The address IS re- o
1arkable in the important particular
hat il 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-
,nipg on the side of the creditor; argu :
ing in favor of the maintenance OF all
the safeguards that the law throws
arouI d the wise, the wealthy and The
strong; ignoring the claims of the poor ,
and the weak to protection, and general
ly refusing to recognize the lundamen-
tai principles of human justice in an I'M
devotion to the ancient ways
of oppression-and fees. The rightsof
is phrase that has been used
SO frequently in totally one-sided and
unjust way that the reverence due to IT.
real meaning has come to be a supersti
tious worship of its perverted power
The creditor has no more right 10 iDjure
the pebtor's estate than has the
debtor to injure the creditors. Nor
is the creditor any more likely |
to be an honest man than the
debtor: yet all collection laws in all
times and all countries have been fran
ed OIL the presumption that such is the
case. Judging from common experience,
especially where professional money
lenders and money-lending corporations
are concerned, the converse, as 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 we'll 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 a debtor could be
Imprisoned at the will and during the
pleasure of the creditor, aroused the
md gnation of all civilized mankind.
These laws were adopted into the
statutes If various of the Eastern States.
but have all since been repealed, yet
| Lu6FE TGiHdlll UIduN VI hHC uAOob penn
cioas 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-
>as, and he made such a showing as will
. necessarily set men Il thinking, if it does
not largely aid in bringing about a
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 a popular delusiou
Practically, We have 40 exemption,
at al. There is no inhibition against
encumbering the homestead and per
sonal property exemptions" 1t j,
strange to hear from 50 eminent al
authority this sweeping assertion, while
in sentence further down i'll his address,
h. quotes the Constitution of Arkansa,
of 1868, which expressly declares tina
1.-The homestead of any resident oil thi
State who is IA married man or head o
FAMILY shall not he encountered in an,
manner while owned by him, except foI
taxes, laborers' and mechanics liens anC
J ~tCuElli6S 1OI ltlt PURCHASE lnGTtOl.
The apparent contradiction is made I,
e disappear, however, in the statemrn
concerning subsequent legislation oh
tanned at the instance of certain foreigI
money lending corporations. They sue
ceeded in getting law passed whic
enables the borrower OF money to waiv
e in his mortgage deed he right of az
II praisement, sale and redemption on a
of his property, including the homestead
The way in which the mortgage syster
E. now works is described to be, first,
c. waiver of all exemption right; SECOND
,e payment of 20 per cent. of the prime
+. pal sum borrowed as commissions
- third, the payment of all costs for search
|, ing the records, aud the like; fourth, til
We maintenance of improvements an
10 insurance, for the benefit of til
mortgage; fifth, an agreement that sa
in case of derelcIion of payment sha
be made by the trustee without gOir
of into court; SIKH, the payment of I'll
ST trustees expenses and all the fees of til
d. mort gagee's lawyer for collecting til
he mortgage; and, seventh, the payment {
from 70 10 per cent. interest on tn
he principal sum borrowed, including, {
to course, the one fifth withheld as ICON
III missions"
at Tie act of the Legislature unde
~ which, in evident controyersion of til
- intention of the Constitution, such
s. system became possible, WAS obtaine
70 on the old familiar plea that the intr,
4 duction of foreign capital into the Stat
;. must be beneficial. But, in reply t
" this plausible looking argument, Judg
. Caldwell said: "Whether borrowe
" money brought into the State adds t
81 the capital of the borrower and enriche
e, the State, depends upon the 9uestio
e. whether the borrower can make nor
ic profit out of the use of it than he pay
e for it" It is obvious that if the cost
ry more buldensome than the n
es turns can pay, instead of a prof
De there must be loss both to til
le individual and the State. and til
III loss of the latter culliinates when til
:. unfortunate borrower, through an III
"a wise yielding to the temptation offere
y by the money lender becomes penn
less outcast from the home stead he ha
"A so unwarly scriiced. In this conne
e. ton the speaker alluded TO the popnls
in fallacy that the borrower is alwa,
i the solicitor. He showed COZ
C. clusiveIy that precisely the contrary
IT. the case, and that in The great majorit
he of instances it is drought the solicit;
e. lions of the professional lender, I'll
alluring advertisements put forth an
glozing statements of interested fuanci:
agents, that mortgage debts are col
traeted. He also showed that the rel
ton of the lender to the borrower W.
at one wherein the former, with all til
be aids that legal learning, buCine:
- experience and trained astuteness ca
u afford, supplemented by the who
ne power of laws specially contrived in hi
IL interest, seeks to gain without tn
"a slightest risk to himself, all the fruits {
the mortgeger's labor. Closing his ad
~ dress with the quotation from Burke
81 know that credit must be pre-er,
10 ed, but equity must be preserve
~ too" the Judge recommended as on
4 primary remedy for the evils p0inte
- out the absolute prohibition of incuu
! brances on homesteads. He also sug
= gested the repeal of the laws whic
a. authorize mortgages on growing crop
a or crops to be grown, or at least thei
il modi hcation So that such mortgage
shall only apply to SO much of the Gro
m as shall remain after paving rent an
n feeding the family of the lnortgagor fo
y one year, thus making the lender
"a participant in the ordinary risks of tn
n borrower; and the prohibition of prefer
entail assignments. How the ayerag
70 lawyer, money lender and debt-collecto
~ will regard the Judges recommendation
% it is not difficult to understand. Tha
4 the people will hail them with satisfat
n ton there is no Doubt Globe Denaocra
"a