Hardeman v. Downer , 39 Ga. 425 ( 1869 )

McCay, J.

1. That no State shall pass any law impairing the obligation of contracts, is the plain letter of the Constitution of the United States, Article 1, Section 10, Part 1, and without doubt it is firmly settled, by a long series of decisions, that a State can no more pass a law professing only to regulate the remedy, though in fact impairing the obligation, than it can one acting directly upon the terms of contracts.

I do not care to examine in detail these various decisions. They all in express terms admit the power of the State over the remedy, and they all decide that if this power be so used as to violate the obligation of the contract, the legislation is void. 4 Wheat., 198; 12 Wheat., 213; Ib., 370; 9 Peters, 329; 1 How. 202; Ib., 315; 2 How., 608; 3 How. 707; 6 How., 330; 15 How., 334; 7 How., 279; 4 Wallace, 553. All of these cases admit that it is not every modification of the remedy that is void. Judge "Woodbury, in the case of Planters’ Bank vs. Sharp et al., says upon modifications of the remedy: “ Some other laws are referred to which are upheld and which affect the whole community, and seem to violate some of the important incidents of contracts between individuals, or between them and corporations. But it will usually be found that these laws are only such as relate to future contracts, or if to past ones, relate to proceedings in Courts, to the form of the remedy, merely, to priority in some classes of creditors, (5 Cranch, 298,) to the kind of process, (9 Peters, 319; 10 Wheat. 51,) to the length of the statute of limitations, (6 Wheat., 131; 2 Mason, 168; 3 John. Chan., 190; 4 Wheat., 200; 1 Howard, 315,) to exempting the body from imprisonment, (4 Wheat., 200,) or tools and household goods from seizure, (16 John., 244; 1 Hin., 15; 11 Martin, 730,) or affecting some privilege attached to the person or territory, and not to the terms or obligations of the contract itself. But if professing to alter the remedy only, the duties and rights under the contract itself are changed or impaired, it comes Within the spirit of the constitutional principle. Planters’ Bank vs. Sharp et al., 6 Howard, 330.

It was said in argument that the test is, “ Has the value of the contract been lessened ?” and this very case of Planters’ Bank vs, Sharp et al. is referred to as sustaining that idea. This would indeed be a rule, and, if it were such, it would also be a sweeping onslaught upon nearly every Act of a State Legislature regulating the remedies afforded for contracts. Under such a rule it is hardly possible to conceive of a modification of the remedy that would not be void. Any Act creating the least delay, or casting the least new duty upon the obligee, as a law requiring a bond for costs before suit, or a law permitting an appeal from one tribunal to another, would all be void, since it is plain that it is not the degree of interference which makes the law void, but the fact that the contract is at all impaired. If the laws in force at the time of the contract, relating to the remedy, form a part of it, then any law in the least changing the remedy is void, since it is not the extent of the change, but the fact of the change, which is prohibited. But though the case referred to, of Planters’ Bank vs. Sharp et al., does contain some such language, yet the very instances Judge Woodbury there puts of valid laws necessarily contradicts such an idea.

The repeal of the attachment or garnishment laws oí a State, the change of the number of terms per year of the Courts, and a hundred other laws, admitted to be valid, would do this. Indeed, the same Court has over and over again upheld, as valid, law after law of the State Legislatures under which the contract was by no means worth as much as it was without the law. The strangest of the cases, is that holding valid a law abolishing imprisonment for debt, and actually discharging from custody a debtor arrested on a judgment founded on a contract made before the law was passed, 12 Wheaton, 200 ; Ibid, 370 ; 9 Peter, 329.

But the Supreme Court in a subsequent case, to Planters’ Bank vs. Sharp et al., to wit: Van Hoffman vs. City of Quincy, 4 Wallace, 553, quotes this language of Judge Wood-bury, and adds to it the following significant modification: “ This has reference to legislation which affects the contract directly, and not incidentally, or only by consequence,” so that there is, and in the nature of the case there can be, no rule upon the subject. Each case must stand upon its own merits, since in the case of modifications of the remedy, a power, which all the cases admit to be in the States, it would seem to depend from the decisions upon whether there is in fact a substantial remedy left or not. It is very pertinently said that without any remedy a contract is of no legal value at all, and that the denial of all remedy is as much a violation of the obligation of a contract as an Act permitting it to be discharged without payment. On the other hand, it is so clear from the history of this clause, and from the universal practice of the States, that it was not intended to interfere with the fullest discretion in the States over their own modes of procedure, that it is often a nice question whether any particular Act is only the exercise of the admitted power to modify the remedy, or is, though professing to be only a change of the remedy, in fact an impairing, a change of the terms of the contract, and it is upon this discussion that the uncertainty and conflict of decisions has arisen. Nothing is clearer than that there is a distinction between the contract of the parties and the remedies which the State furnishes for the breach of it. Indeed there are very few contracts which the laws enforce in their terms by enforcing their specific performance. Courts of law never do. They accord to the party damages for the breach of the contract; they punish the defaulter for his violation of his promise. If the contract, for instance, be that A will pay to B one hundred dollars on a day certain, and A fails, it is not in the power of the Courts to compel the performance of the contract as agreed upon, for the simple reason that the day is past; the Courts may adjudge that B do recover from A that much' money with certain damages for his failure, and may direct that A’s property be sold, and that the proceeds be applied to the discharge of his obligation to B, but they do not and cannot compel A to perform in terms his agreement, for that was to pay at-a fixed time. So, too, if A agrees to deliver property, as corn, hay, cotton, or what not, to B, it may be, nay often is, the specific article B desires to get, and has contracted for; yet, even Courts of Equity, except under extraordinary circumstances, do not and will not require the specific performance of the contract. If it be broken they will give to the obligee a remedy in damages according to the facts of the case. It is indeed very rarely that Courts enforce contracts according to their terms. They merely give the parties a remedy for the breach of these terms, and these remedies are of various kinds. If the contract is for less than $100 00, by our law one can have a remedy for the breach of it before a justice, without a jury, and in a month’s time. If it is for over $100 00, the only remedy is in the, Superior Court, and it will take from six to twelve months to obtain it. If it be a contract for rent, judgment may be had at the first term, or the party may obtain a distress warrant. Indeed, there are a great number of remedies, as by attachment, by garnishment, by proceedings under the various lien laws, by foreclosure, etc., and of these some are far more efficient than others. There are, too, various modes in use for the enforcement of judgments, as by sequestration, by attachment for contempt, b y fieri facias, by scire facias, by extent, by ca. sa. Some of these take only laud and sell it, others only personal property, others only take the land until the use of it pays the damages, and others take the body of the debtor, These all are remedies, and some far more effective than others. In many cases the ca. sa. was the most efficient. Indeed it was often the only effective remedy. That, it is admitted by all, may be taken away entirely, so that any other of the usual remedies be left, and who, after reading the decisions with which the books are full, would say that it would not be competent for a State to alter or abolish its attachment or garnishment laws, extend or limit the jurisdiction of its Courts with summary powers, abolish entirely one of its forms of execution, or modify, at its pleasure, all or any of its remedies ? As to that particular form of a modification which consists in exempting from levy and sale such portions of the debtor’s property as are necessary for the subsistence of himself and family, or for carrying on his ordinary occupation, the cases in the Supreme Court of the United States are uniform in affirmance of the validity of such a law. Sturges vs. Crowningshield, 4 Wheat., 198; Ogden vs. Sanders, 12 Wheat., 213; Bronson vs. Kenzie, 1 Howard, 311; Planters’ Bank vs. Sharpe et al., 6 Howard, 327; and Van Hoffman v.s. The City of Quincy, 4 Wallace, 553.

Judges Marshall, Story, Taney, Woodbury and Swayne have in these decisions, over and over again, announced this as the settled rule. The Supreme Court, of New York, of Pennsylvania, of Michigan, of Mississippi, of Kansas, and of various other States, have solemnly affirmed the same doctrine. 1 Kernan, N. Y. Eep, 292; 2 Douglass, (Mich.,) 197 ; 3 Kansas, 124. At last, therefore, the real question is, does our Homestead Law come within the principle of these decisions ? Is it the exemption of such of the debtor’s effects as may fairly be considered necessary for the subsistence of the debtor’s family, and for carrying on his usual occupation ? Who is to judge ? Without doubt it must be the law-making power. Should it make a grossly excessive exemption, so as to show that its object was not so much to protect its people from destitution as to enable debtors to screen valuable effects from the payment of their debts, perhaps it would be the duty of the Court to interfere. Our Constitution,not amere legislative act, made for temporary purposes, but the fundamental law, exempts real estate of the value of $2000 00 in specie, and personalty to the value of $1000 00. Is this excessive? Does it indicate a mere temporary purpose to defeat existing creditors ? The fact that it is made a part of the Constitution, the fundamental law for the future government of the State, shows that it is contemplated as the settled policy of the Government, and that it is not intended merely to obstruct the collection of existing debts. Nor is it excessive so as to show that its intent is, not to subserve a great public policy, but to hinder and defeat creditors in obtaining their just demands. How is such a question to be settled? Is not land in a country where nearly all are farmers as much a necessity as the tools of a trade? Is not a house to live in just as important as a bed to sleep on? What is a reasonable amount must of necessity be an open question. Perhaps as good a way to settle it as any is to refer to the practice of the States. In Georgia, by the .old law, it was fifty acres of land for each head of a family, and five acres for each child under fifteen years of age, and various specified articles of personal property. There was, if the land was only used for agricultural purposes, no limit to its value, it might be, and often was, worth but one dollar per acre, or it might be, and often was, worth fifty dollars per acre, and this independant of the improvements upon it, which might be of any value the debtor was able to erect. In California it is a lot of land with appurtenances not worth over five thousand dollars. In Illinois it is not to exceed one thousand dollars, in Indiana three hundred dollars, in Iowa five hundred dollars, in Maine five hundred dollars, in Massachusetts eight hundred dollars, in Michigan fifteen hundred dollars, in Minnesota eighty acres of land, or if in a town, one town lot, and these independent of value, in Mississippi one hundred and sixty acres of land, or town property worth not more than fifteen hundred dollars, exclusive of buildings and improvements, in New Hampshire five hundred dollars, in New York a lot and buildings not worth over one thousand dollars, in Ohio five hundred dollars, in South Carolina fifty acres, in Texas two hundred acres, without regard to value, or, if in a city or town, a lot Worth two thousand dollars, i Is the practice of all these States nothing ? Is their conception of public policy no guide ? The authorities I have quoted, including such names as Marshall, Taney, Story, Woodbury, Gibson, Baldwin and Swayne, all of them, without exception, assert it as the settled law, that “ even as against existing debts a State may exempt the necessary implements of agriculture, the tools of a mechanic, and articles of necessity in household furniture.” It will be noticed that this rule is not a statute with specified exemptions, pointing out in detail the articles a State may exempt. It is a principle deduced by these great men from the nature and objects of government, and from their understanding of the nature and extent of that clause of the Constitution of the United States under discussion. Is it supposable that this principle, in its nature, is confined to implements of agriculture, and tools of trade, and household furniture, that it includes a hoe, and a plow, and a wagon, which are implements, but not a horse to pull them; that it covers f>2,000 00 worth of tools, but not one dollar’s worth of land, that it covers beds and chairs, but not a house to put them in ? The principle on which this power in the States has, by all these great men been upheld, is, that a State has some other objects as well as the enforcement of debts ; that it may be, and is, a great and important object of public policy that its people shall not be reduced by misfortune to the last extremity, even that just debts may be paid..

It stands upon the footing of the right to make a public road over granted land, and of that whole class of powers which depend upon the right of the State to legislate for the public weal, even though, in doing so, one man may suffer more than another. Is it of high public importance — a matter in which the State, as the guardian of its people, has an interest — that the women and children shall not be homeless, and that all shall be encouraged to secure in the State a permanent abode, and improve it ? So the people of this State have long thought, and for nearly thirty years there has been exempt from levy and sale in this'State, for each head of a family, for a homestead, at least fifty, and if he had ten children, one hundred acres of land, without regard to value. Shall it be said that a solemn constitutional provision, by which that exemption is modified, so as to give, instead of the fifty or one hundred acres, an exemption of real estate to the value of two thousand dollars is, as against debts existing before the modification was made, an impairing of the obligation of contracts and therefore void ? Suppose, for argument’s sake, that the doctrine of Marshall, Story, Taney, Woodbury, Swayne and Gibson is not correct. Suppose that the construction put in the argument of this ease at the hearing, upon the language of Judge Swayne, in Van Hoffman against the City of Quincy be correct, and that that Judge, in spite of his own express declaration to the contrary, in the very same decision, be understood to hold, that the remedies in existence at the date of a contract, enter into it, and cannot be altered so as to deprive the obligee of the right to sell anything which by the law of the State he might sell at the date of the contract ? Suppose all this be true, even then, in my judgment, this law would not impair the obligation of this contract, would not lessen in the least the amount of the obligor’s property, which, under the contract, was subject-to the debt. What would that contract have been ? “ That all the property the debtor might have at the judgment should be subject to be sold, except such as was then exempt by law.” Under the contract, by the laws then in force, it was in the power of every head of a family to acquire and hold exempt from levy and sale, at least fifty acres of land, worth any price it might bring in the market. It is notorious, that there was plenty of land worth, at that time, and now, fifty dollars per acre, even as farming land, and under that same .law, there was no limit on the value of the homestead. It might be worth one dollar per acre, and have on it a hut, or it might be worth fifty dollars an acre, and have upon it a palace. Under the contract it was agreed that the debtor might, if he pleased, invest his means in such a homestead, and hold it exempt from sale. Can a law, providing that every head of a family shall hold exempt two thousand dollars of real estate be an impairing of the obligation of a contract which, by its very terms, stipulated for a homestead, which, if the debtor pleased, might, be worth even more than this f A debtor who happened, at the date of the judgment, or rather at the date of the levy, to reside in a town, was, it is true, limited in his homestead to the sum of five hundred dollars, but the larger portion of our people, indeed four-fifths of them, reside in the country, and by the very terms of the contract we have supposed, (to-wit: a contract incorporating the exemption law of 1841 as a part of it,) the value of the homestead was without limit. To some of our citizens in all parts of the State, and to all of them in some parts, the present homestead is actually a less exemption than they would be entitled to under the Act of 1841; and there is not a debtor in the State who might not, if he pleased, and had the means, obtain, under that law, at least as great an exemption as is provided for under the Constitution of 1868. Now it is no unfair assumption, supposing the parties to a contract under the old law, contracted with • reference to its provisions, to hold, that the creditor took the contract with the understanding that it was subject to be met by as large an exemption as it was possible the debtor might, under the law, acquire. They contracted for a homestead of any value. Is it a violation of the obligation of the contract, so to modify the law, as to allow all an exemption not greater in value than each might, under the contract, acquire ?

The old law was unequal and unfair. It made distinctions between country people and town people • it allowed a man with a fine house upon his land, or with valuable land, a greater exemption than it did a man whose land was poor, or whose house was of small value.

The homestead provision of the Convention of 1868 did not increase, at all, the amount in value of property, that under the law existing at the time might be held exempt by any debtor. It was but an equalization of the law and its provisions to all the people of the State, and, with average prosperity to the country, it is my opinion that in a very few years the law of 1841 will allow, in all the farming counties, a homestead of greater value than can be held under the Constitution of 1868. But it is not my judgment that the laws of a State, in which a contract is made regulating the amount of property exempt from sale, are any part of the contracts that arc made in that State. If this" were so, they would follow the contract from State to State. A contract is a contract, and each State is bound to enforce it as it was made. A debtor who made a contract in California, where the homestead may be five thousand dollars, might claim it in Georgia, where it is but two thousand dollars, and a debtor’ from a State where it is but five hundred dollars, could not, in Georgia, set up his fifty acres of land and a mule under the Act of 1841.

It is contended, however, in this case, that the rights of these parties are fixed by the judgment, and that the Homestead Law divests a vested right, and is therefore void. It is well settled that it is no violation of the Constitution of the United States for a State to pass a law divesting a vested right, provided that right is not vested by the contract of the parties. Satterlee vs. Mathewson, 2 Peters, 380; Watson vs. Mercer, 8 Peters, 88; Charles River Bridge vs. Warren Bridge, 11 Pet., 420; Baltimore & Susquehanna R. Road Co. vs. Nesbit, 10 How., 395; Carpenter vs. Pennsylvania, 17 How., 456. Such laws, it is true, are not favored, and the Constitutions of most of the States prohibit them, but the law now claimed to be void is a part of the Constitution of this State, and besides there is not in the Constitution of 1868 any provision denying to the Legislature the power to divest vested rights, or to pass retroactive laws. The Constitution of the United States, which prohibits ex post facto laws by States, as construed by all the Courts, has reference only to penal laws, (see the cases cited above,) and the Supreme Court has so uniformly held. In the case of The Society for the Propagation of the Gospel vs. Town of Paulet, that Court held that it was even competent for a State Legislature to deprive the plaintiff in ejectment of the right he previously had to recover mesne profits in a suit in ejectment for land: 4 Peters, 480.

2. But I am strongly inclined to think that the present Homestead and Exemption Law, as it is called, stands upon a stronger ground than ordinary exemption laws, and that the contract between the debtor and creditor has, in fact, nothing to do with it. It is not contended that under the contract a creditor acquires any lien upon the property of his debtor. He may still sell it, mortgage it, or waste it. He may contract a subsequent debt, which reduced to judgment, may take superior lien upon it, or the debtor may, if he please, sell it to a creditor of a year, to the entire exclusion of a creditor of five years. Now the Constitution of 1868 gives to the debtor no rights at all as against his creditor. It is expressly provided that the property exempt shall be secured to the separate use of the wife and family. The exemption is only to heads of families, and the statute passes the title out of the debtor, and vests it in the wife and children. It ceases to be the property of the husband. He loses all title to it. At the death of the wife it goes to her children. In plain words, this law is not for the benefit of the debtor at all. It shows him no favors. It does not interfere at all between him and the creditor. Here are two classes of claimants upon the debtor; one class has his written obligation to pay a specified sum of money; the other class has no written promise to pay, but the debtor, by the law of the land, is under a legal obligation to give to them a reasonable support according to his condition of life. I do not allude to the moral or natural duty which one is under to his wife, but to the legal obligation cast upon him by the express law of the land. By the common law, the husband was under legal obligation to give to his wife a reasonable support. It is true there was at common law but a poor remedy furnished the wife to enforce this obligation. Under certain circumstances a Court of Equity would grant this to her, but at law there was no way to compel the husband even to furnish her with the necessaries of life, but for her to contract a debt for them, which the law compelled him to pay. Our Code, section 1747, expressly says: “The husband is bound to support and maintain his wife.” If the husband and wife voluntarily separate, or if the husband, desert her, under section 1736' of the Code, she may sue him for alimony and recover a judgment against him, which is a lien upon his property, and, as to this, she is precisely upon a footing of any other judgment creditor. Whilst they live together her remedy is under the Homestead Law. The Act of 1841, as well as the Code, sets apart the exemption to the separate use of the wife, the title of the husband was divested, the property became the property of the wife. She was expressly authorized to sue for trespasses upon it, and at her death it went to her children. And this was the law at the date of the contract on which the judgment in this case is founded. The husband was bound by the law to furnish to the wife a reasonable support. If they separated, she might sue him and recover that reasonable support as a debt. If they lived together, she might bind her husband for necessaries, or she might have the homestead and exemption of personalty (or he might for her) set apart to her use. The true question, therefore, is not between the creditor and the debtor, but between two creditors of the debtor, the creditor by contract and the creditor by statute, and the proper matter for inquiry is, does the constitutional clause forbidding the passage of a law impairing the obligation of contracts, prohibit the State from giving to the wife a better and a larger remedy for her legal rights than she had before ? In other words, is it a violation of the Constitution of the United States for a State to pass laws giving preference to one set of creditors over another set, when at the date of the contract no such preference existed? Is it a portion of every contract that the obligee shall continue until he is satisfied to stand upon equal footing with all creditors who, by the law, are not preferred to him at the date of the contract? This direct question came before the Supreme Court of the United States in the case of Harrison vs. Sterry et al., 5 Cranch, 289, 302. In the distribution of a bankrupt’s effects, by the Act of March 3d, 1797, the United States claimed a priority over certain other creditors, by virtue of the Act of 1797, providing that debts due the United States should be first paid. These creditors were foreign creditors, and it was contended that as, by the law of the place of the contract, no such preference existed, the Act of 1797 was not to be so construed as to give the United States a preference as against them. Chief Justice Marshall, in-delivering the opinion of the Court, says: “The law of the place of a contract is, generally speaking, the law of the contract. But the right of priority forms no part of the contract itself. It is extrinsic, and is rather a personal privelege, dependant on the law of place whei’e the Court sits or the property lies. In the familiar ease of the administration of a deceased person’s assets, they are distributed according to the dignity of the debt, as regulated by the law of the place where the representative of the deceased acts, and from which he derives his powers, and not by the law of the place of the contract. Cranch, 598, 599. What difference is there in principle between a priority given by the law of the place of execution, contrary to that given by the law of the place of the contract, and a priority given by a law of the time of performance, different from that given by the law of the time of the contract ? If either the right of priority or equality is in the contract, then a physician’s account for services during a last illness, would have preference or not according to the place of the contract. So, too, in the familiar case of statutes of distribution of deceased men’s effects. Who has ever contended that the preference given by law to one class of creditors over another was a violation of the obligation of the contracts not preferred? Here is a man in Georgia who has a judgment against A, binding all his property, and having a preferred claim against all his effects. A, even after the date of the judgment, contracts a trust debt, and dies insolvent, the lien of the judgment is divested, and the trust debt steps in and takes the preference. The right of preference, or the right of equality, is not a part of the contract, though it may or may not be the law at the date of the contract. It is a regulation of the remedy, made often, to carry out the great public interests of the State. So, too, this Court in the case of State vs. Dickson, 38th Ga., 171, decided that the Act of the Legislature of this State, placing the Western & Atlantic Eailroad on the footing of the State, as to its debts, gave it a preference, even as against debts then existing. And in the case of Embry & Fisher vs. Clapp, 38th Ga. R., 245, at the last term of this Court, we held that the Act of the 24th of February, 1866, permitting a failing debtor to prefer one creditor to another, was a valid law, although, at the date of the several contracts, this could not have been done. All such provisions 'are regulations based upon the public policy of the State, and have reference not to the contract of the parties, but to what the State, for its own purposes of public policy, deems best for the public weal, and may be altered at pleasure, whenever the State, in its wisdom, shall see fit to do so. Who would say that it is not competent for a State Legislature, even as against past debts, to give to a wife one-half instead of one-third of her husband’s realty at his death, as her dower, or to provide, even as against existing creditors, for a reasonable support to the family for a proper period. Yet if this right to priority or to equality exists by the contract this could not be done. So, too, in this case. The law gives to the wife, from the husband, a reasonable support, and it is competent for the Legislature, in this way, to give her a remedy, one, too, which shall give her a preference over other creditors. For' these reasons, therefore, I am of the opinion that the Constitution of 1868, providing for a homestead, is only a regulation of the remedy, and is not an impairing of any right, express or implied, secured to creditors then existing by their ordinary contracts.

3. It will moreover be observed that the judiciary, even of the Supreme Court of the United States, has no legislative powers. In the enforcement of this clause of the Constitution of the United States, they can only do so by holding the law complained of void. They cannot make a law to give a ' remedy. If, when the law complained of is declared void, no remedy in fact exists, the judiciary is powerless to help the case. If the remedy is lost in any way, other than by the “ passing of a law,” the evil is beyond the reach of the Courts, since they can only reach it by declaring the “ law ” unconstitutional and void. If a new State, for instance, in the organization of its Courts, should fail to create any Court with jurisdiction to hear and give judgment upon contracts. there would be no “Act ” for the Courts to hold void. It would require affirmative legislation to meet the case, and that is beyond'the power of the Courts. If a State should meet in convention and abolish all its Courts, and set’ up new Courts, and provide in the system no Court with power to enforce certain contracts, and the old Court having the power should give way, disappear, and no judicial organization be left with power to enforce the particular contracts alluded to, all remedy would be gone, and it would not be in the power of any Court to cure the evil. If the old Court were still in existence, the judiciary might hold that the “ law” depriving it of its jurisdiction was void, and that it might still enforce the contracts for which the new organization furnished no remedy. But if the old Courts have disappeared the judiciary has not the power to correct the evil. Its power is only negative. It may declare a particular law void, and if, when that is done, a remedy exists for the contract, well and good, but if, after the legislation is held void, no remedy exists, the judiciary has exhausted its resources, the evil can then only be cured by legislation. And just this is the state of the case in Georgia. The old judiciary system of the State went by the board in the revolution that, in 1861 to 1865, swept over the land. The judiciary system of 1868 is the creation of the Constitution of 1868, and has no powers except such as it gets under that Constitution. It does not get any of its powers from the system that was in existence in 1861. That system, with all its jurisdiction, lies buried in the vortex, where also lie thousands of our people, and three-fourths of the prosperty of the State.

So far as civil organization is concerned, in fact when the Convention of 1868 met, there was none. The machinery in operation was military, and the Courts only had such powers as it saw fit .to permit to them. The organization was merely provisional, and the Superior Courts of this State, as they now exist, hold all their powers under the Constitution of 1868. That Court, it is true, is, by that Constitution, clothed with power to perfect the judgments of the old Courts, and execute them, but it is with the express exception of such matters and cases as are not prohibited by the new Constitution to the Courts. The Constitution of 1868 gives no general jurisdiction to any Court. The Superior Court has- the largest jurisdiction, and is the first Court whose jurisdiction is defined. It has exclusive criminal jurisdiction of certain cases. It has jurisdiction over cases respect ing title'to land, and in divorce and equity cases, and in all other civil cases, “except as herein after provided.” Article 5, section 3. The Constitution then erects other jurisdictions, confers upon them certain jurisdiction, and has also the homestead exception, which declares “ that no Court or ministerial officer in this State shall have jurisdiction or authority to enforce any judgment against the property so set apart.” Nothing, can be plainer than that it was the intent of the Convention of 1868 not to give jurisdiction to the Courts to enforce a judgment against the homestead which it provided for. Such is the express language used, and should this or any other Court declare the Superior Court, or any Court set up by that Convention, to have the jurisdiction, it would be an act of legislation. It is not the case of a law taking away from a Court already in existence a jurisdiction it has had, but it is the failure, in setting up the new Court, to confer upon it the jurisdiction necessary to enforce this judgment against the homestead. If the right to sell this property under the judgment is a right secured by the contract, and it is a violation of the Constitution of the United States to take it away by legislation, which I do not by any means admit, I reply that the power to enforce it was not taken away by legislation, but by revolution, or if it existed even after the revolution, by the Act of Congress, of March 3d, 1867, which declared there was not in Georgia any legal civil government. If the power was taken away by any legislation it was not by the State, but by Congress. In other words, the case before us is not the case of passing a law, but of failing to pass one, not of taking away a remedy, but of failing to give one, not of violating the obligation of contracts, but of failing to furnish a means of enforcing them. There is simply no machinery to do it, no Court with power over the matter, and neither this Court nor the Supreme Court of the United States, can set up a Court, or confer upon any Court now existing, a power it never had, and which was in fact denied to it in express terms. The evil, if it be one, cannot be cured by the judiciary. Its power of declaring a law void would not meet the case. The thing required is positive legislation, and that no Court has power to undertake.

4. But perhaps there is a stronger view of this question yet. The Constitution of 1868 was made under peculiar circumstances. A revolution had just swept over the land, destroying, in its progress, the civil government of the State in all its departments, and leaving the State unrepresented in the Congress of the United States. The State was without civil government, in anarchy, and the Congress of the United States, under a special clause of the Constitution of the United States, (to wit: Art. 5th, Sec. 4th,) which clothes it, under the circumstances existing, with the power, undertook “ to guarantee to the State a republican government.” The Constitution of 1868 is the result. It was made under a law of Congress, by direction of Congress, under the eye of Congress, and after it was made, and agreed to by the people of Georgia, under the direction of Congress, it was specially, and by solemn Act of that body, agreed to by the United States. A law of Congress, of June 25th, 1868, declared the Constitution of 1868 such a Constitution as under certain conditions therein mentioned, Congress would accept as providing a civil government of the State. The Constitution of 1868 is a compact on the part of the United States. It is an adjustment of the political relations between the State and the United States, which had been disturbed by the revolution. It was the settlement of a great political problem, a treaty of peace after a terrible war. It was the exercise, on the part of both the State and the United States, of the very highest political powers in each in final settlement and adjustment of the most serious complications. One of its terms, for instance, was that a portion of the proposed Constitution should be formally exscinded from that instrument. Another of the terms was, that slavery should be prohibited, and certain guarantees made to certain classes of voters ; and another, that the State should agree to a certain amendment to the Constitution of the United States. All this the State of Georgia has done, and the Congress, for the United States, agreed that the Constitution of 1868 should go into operation as the Constitution of the State.

5. That Constitution, by the power which is vested in the people of Georgia, and by the power of every kind which is vested in the Congress of the United States, declares that no Court in this State shall have jurisdiction to enforce a judgment against the homestead. This special clause was one of the material terms of the adjustment. In the judgment of many, the people of Georgia would never have agreed to the adjustment had it wanted this provision.

There is no doubt but that Congress may, if it please, in the exercise of any of its powers, pass a law impairing the obligation of contracts. This provision does not apply except to the States. Evans vs. Eaton, Pet. C. C., 322. The Constitution of 1868 is an Act of Congress. Congress has agreed to it. This agreement was in the exercise of one of the very highest of its political prerogatives, to wit: the guaranteeing to a State, whose government had gone to wreck in a revolution, a new government. It is the exercise of the political powers of the United States in the adjustment of some of the most delicate questions and gravest complications which have ever occurred in the history of the country. According to the views of some of our gravest statesmen, the whole reconstruction policy is based upon that clause of the Constitution which authorizes Congress to suppress insurrections, that, as to Georgia, where the whole people were declared in insurrection, where the lines of the State were declared by Act of Congress to include only enemies, the whole Constitution of the United States, as to us, was suspended, or rather merged into that clause which authorizes Congress to suppress insurrections, and that the Reconstruction Laws, with the Acts and proceedings thereunder, are but the closing np of the suppression of the great insurrection.

The Constitution of 1868 rightly or wrongly, rests upon the authority of the United States. It is not simply an Act of the State, and if this Court, or any Court, holds the homestead clause void it will hold an Act of Congress void. Nor is the particular law now complained of, even upon the mere footing of an Act of Congress, under its general power to make laws. It is a part of an adjustment of the very gravest political complications, and is the exercise by Congress, not of its mere legislative power, but of its political jurisdiction in adjusting the terms of settlement between Georgia and the United States, of the very highest political complications.

5. For myself, I do not see how it is possible to read the homestead clause in the Constitution, and for a moment hesitate to understand that it is retroactive. It must be remembered that the framers of that instrument conceived of themselves, as making a new government, erecting new Courts, and defining with precision what duties the said Courts and officers should perform, and what powers they should have. And the language used is that no Court or ministerial officer shall have jurisdiction or authority to enforce adjudgment, execution or decree against the property so set apart. “Any judgment, of any date, from any Court.” The language is universal. Such, too, was the understanding of.the Convention, and of the people at the time. So fully was this understood, that Mr. Akerman, perhaps the best lawyer in the Convention, and one thoroughly at one with the general policy of the Convention, as appears by the journal, formally announced, when the whole instrument came to be voted upon, that he could not vote aye, because of the relief clause, and because of the retroactive effect of the homestead provision. See Journal of Convention.

6. 'Some stress was laid in the argument upon the last exception in the homestead provision, “ for the removal • of incumbrances.” A judgment, it was said, was clearly an “incumbrance,” and it was argued, that under the very terms of the law, authority was given to sell for the removal of incumbrances. At most, it was argued, the language is ambiguous, and will bear that construction as well as any other.

There is not, to my mind, the least ambiguity, and any. obscurity from the use of the words, “ removal of incumbrances,” only arises from a hasty reading of the clause, and not taking this phrase in connection with the other language. The language, “removal of incumbrances,” like the other exceptions, is to be read in connection with the words, “no Court or ministerial officer shall ever have jurisdiction to enforce any judgment, execution, or decree against the property, except ” — what ? Except a judgment, execution or decree, founded upon a debt due, for taxes; a judgment, execution or decree founded on a debt due for the purchase-money, etc., or a judgment, execution or decree founded on a debt due, (contracted) for the removal of incumbrances.

Each of the exceptions was an incumbrance, there might be others — the land might have upon it an incumbrance of a widow’s dower, or some friend to prevent it from being sold, may, at some time, have paid up a judgment that, as the law stood, was about to sell it. The intent was to put the person who relieved it from such incumbrances upon the same footing as was the party in whose hands the incumbrance was. The debt thus contracted was a sort of purchase-money for the land, since it was only by the debt thus contracted that there was any land left to take a homestead out of. To my mind this is the clear and undoubted meaning of the phrase, and indeed it is only by adding after the words, “judgment, execution or decree,” the words, “ founded on a debt due or contracted,” that any of the exceptions make good sense, since a judgment for the removal of an incumbrance would be nonsense, unless it were a decree for the performance of an act, and not a judgment, at all, for money. The sentence, when complete, taken in any fair sense, would read, “ except a judgment, execution or decree, founded on a debt contracted for the removal of incumbrances,” and if this, which I think is only giving a fair and reasonable construction to the language, be done, the meaning is plain. If one hold a debt which was contracted for the purpose of removing an incumbrance from the property, the Court and ministerial officers have jurisdiction to enforce such a judgment.

Judgment affirmed.