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The Newberry herald. (Newberry, S.C.) 1865-1884, October 03, 1866, Image 1

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At Newberry C. H.,
Payment required Invariably in advance.
Marriage notices, Funeral Invitations, Obitu
aries, and Communications subserving private
interests, are charged as advertisements.
Resolutions Offered by 9r. Garlington.
Resolved, That the condition of the
people of this State, resulting from their
indebtedness as affected by the issues of
the war, demands remedial legislation in
the following particulars,viz:
1st. A revision and amendment of the
laws in relation to Insolvent debtors, so
as to permit voluntary bankruptcy, and
to secure the discharge of debtors from
all debts, upon a full and complete sur
render of their property and effects.
2nd. Abolition of imprisonment for
debt, either on mesne or final process,
and an enlargement of exemptions of
property from levy and sale.
3d. The postponement of remedial
process for the collection of debts so far
as not to conflict with the Constitution
of this State nor of the United States.
4th. That these resolutions be refered
to a special committee, to be composed
nf--,--rembers, with iustructions to
report such legislation as may be neces
sary to earry the same into effect.
Ma. SPEAKR: In considering these
resolutions the first question that presents
itself is whether there exists a necessity
for legislation. Are the evils which ex
ist of sueh magnitude as to amount to a
public grievance which this Legislature
is bound to take notice of %nd apply a
Temedy. If this necessity does not ex
ist, if all that we have heard and read on
this subject amounts to nothing More.
than a clamor, having no foundation in
the condition of thiags, then it is our
duty to dismiss the matter as not a fit
subject of legislation. Xi,, on the con
trarv, the necessity df remedial legisla
tion, growing out of the abn!rmal con
dition of things resulting frxn the war,
can be shown, then - .r _duty is plain.
We should adopt pratical measures of
relief without violating the fundamental
law cf the land. But if we such mieas
can be adopted withia the scope of
gi3ative pow er then we will have to
.ve the subject where we find it, remit
to the people and let ibert work out
eir delive:ri-ce by their -own individual
fforts and resources as ibest they can.
How then are we to 4etermine this
first question? What kind of proof is
required to establish the existence of this
necessity ? If a case of private grievance
were presented to us, individual interest
would be a sufficient incentive to the
party complaining to put us in posses
sion~of the facts in the shape of evidence,
and we would be aided in the investiga
tion of the matter by established rules
arnd forms of procedure. But here the
case is different; it is a public grievance
which mwe:are invited to consider, not a
question sof private interests, nor of the
inte;ests-ofa class,but of the corm nity,
ofihe%tate. It is not a question be
itween coreditors and debtors. It has
-anisen 'from the relationi existing between
these two classes of persons, but out of
That relation has sprung a question of
state policy ; what shall be done to re
~li eve ithe 'distressed and to avert the ruin
'hichliinpends over tbe State, if the pec
!ple are left to discharge their legal obli
,gations according to the usual forms of
fprocedure ? This is the true question.
The evil complained of being one that
has grown out of the condition of things
in which the people have found them
selves placed by the results ot the war,
and affecting them most directly and in
timately it would seem that they are the
7most competent judges of its charazter
and extent. The immediate cause of this
,eil, it,is alleged, is an amount of indebt
edness which cannot be discharged at
.once and at the will of the creditor.
Who so capableaf judging of this fact as
e people themselves? They under
nd their real condition, and they have
oexpression sto their opinions in lan
that cannot be misunderstood. In
rts of the&eate they have held
eetings and adopted resolutions
on his Excellency the Governor
e the Legsature in extraordi
seIon, to take~ the subject into
sideration and adopt raeaswres of re
f. How many of these primary meet
gs ha"e been held I am not prepabre4 to
,but in the section of the State which
part represent they have been suffi
ly numerous and well attended to
te what is the public sentiment.
aracter of these popular assem
d their action show tha~t the pee
ve t.here is just cause for the ap
done by the Legislature, and at an early
day, great disaster to the State will be
the consequence. Popular movements
of this kind never take place without a
cause, and especially at a time like this,
when the people have just emerged from
a long and exhausting war, and ex
changed the clangor of arms for the quiet
and repose of peace; when, too, their
hopes had been dashed to the earth and
their hearts were filled with the humili
ating thoughts of defeat. Since the war
closed our people have been in no mood
to encourage political agitation. Noth
ing but a strong conviction that immedi
ate Legislation was called for by the ne
cessities of the times could have drawn
them from their homes to take counsel
together and declare their sentiments.
They have done so in all honesty of pur
pose, and said to, ycu, sir, and to me,
and to my compeers on this floor, that
something should be done to relieve the
country ; that there is an urgent,,. aye,
paramount necessity, that the Legisla
ture should exert their power to save
them and the State from the calamities
which threaten. This then is the inform
ation which the people have given to us,
this is their petition and their warning.
There is another sort of information
which we have on the subject to guide
us in our netion. It is that which mem
bers have brought here with them. What
do members say is the result of the know
ledge which they have derived from their
intercourse with the people whom they
represent? From your knowledge of the
condition of the country do you not be
lieve that the enforcement of legal pro
cess for the collection of debts, at this
time and at the will of creditors, will re
sult in geraral insolvency. I might say
almost universal bankruptcy. If you
answer in the affirmative, then you en
dorse what the poople have said in their
primary meetings. You coroborate their
testimony, by your own observation
and experience. If you do not an
swer as I suppose you would, I. beg that
you reflect on the question in connection
with what I sball hereafter say.
In support of the general views em
bodied in the resolutions, let us consider
briefly the causes which have led to the
present pecuniary condition of the coun
try. When I speak of the condition of the
country I mean more particularly the con
dition of the agricultural class. Upon the
condition of this.class of our people main
ly depends the prosperity of all other
industrial pursuits, and consequently the
prosperity of the State.
The remote cause of the great an dgen
eral indebtedness of the country is the
credit system, based on slave property
which prevailed before the war. While
our people were never very extravagant
in their expenditures they have always
been in debt? I think that I will be
sustained by every one who has reflected
on the subject in the assertion, that at
no time within the experience of persons
of my age, even of our greatest prosperi
ty, could the subsisting debts of the coun
try have been paid without sales of prop
erty the corpus of estates. The income
of the property of the people has never,
at least for many years, kept even pace
with their debts; and I presume this has
been the case generally with the older
cotton States. The solution of this fact
of this staite of things, is this: This in
debtedness originated in the fact that
agriculture had ceased to be profitable in
this State, and has continued from the
same cause. There may be exceptions
as to particular departments of agricul
ture. *My remarks are intended to ap
ply to the great agricultural interest of
the State-the culture of short cotton
and grain. The fact is well known, I
bleeis universally conceded, that the
onl sorceof profit from investments in
this pursuit for many years was the im
provement of estates by the increase and
growth of negroes. The competition in
the production of the great Southern
staple produced by opening the vast and
fertile fields of the West and South-west,
prostrated the agricultural prosperity of the
olderStates whieb depended upon the culture
of cotton. This resulted not only in the
abstraction of labor and capital from these
Staes,butthe price of the staple fell below
th otof production, or approached it so
nearly, that its cultivation ceased to be
pi ofitable. The planters of this State, there
fore continued in their pursuit, not because
they found it profitable as a source of im
mediate income, but because they believed
that the increase of their property in. ne
groes more than compensated them for the
deterioration of their lands and losses from
other causes. Besides they preferred to re
maiG here, rather than abandon their pa
ternal estates and seek their fortunes else
where, so long as the investment in negroes
for their children exceeded in value the
amount of. the interest upon their debts.
Besides these considerations, our people
were actuated by a feeling of State pride,
an attachment to the laws and institutions
of their fathers, and to the forms of society
in which they were reared-a lofty patriot
ismn which bound them to the soil upon
which they first trod and the sky upon
which their eyes first opened. This feeling
in times past has been the subject of the
taunts of those who ridieuled our chivalry
and what they termed our peculiar views.
But without arguing the question, whet.her
our people nurtured and cherished a mere
sentiment at the sacrifice of their true in
terests and the progress of their material
prosperity, it is nevertheless a fact that this
feeling was deep-rooted in their heai-ts and
exerted its influence upon their conduct.
[t contributed powerfully towards giving our
population the character of fixedness and
permanency. These causes furnish a sat
isfactory explanation of the fact, that so
large a proportion of our population were
retained on thir native soil, although their
chief industrial pursuit had ceased to be
profitable, and although the greatest in
ducements were presented to them to emi
grate to other States The resnit has fol
[owed-they have continued in debt.
It is. impracticable to arrive at a strictly
accurate statement of the amount of their in
debtedness, or of its ratio to the aggregate
value of the property of the State. But I
think that a result may be approximated
sufficiently accurate for the purpose of my
argument. We had in this State before the
war, in round numbers, four hundred thou
sand slaves, which valued at seven hundred
dollars per head, which is below the average
of sales which then took place, amounted
to two hundred and eighty millions dollars.
The number of acres of land upon which
taxes are paid is, in round numberu, seven
teen millions, which valued at five dollars
per acre, which it is submitted is a fair valu
ation, amounts to eighty-five millions dol
lars. This makes the aggregate value of
these two items of property, amount to three
hundred and sixty-five millions dollars. I
throw out of the calculation the value of all
other species of property, as unnecessary to
be taken into consideration, as they would
not change the result. It is more difficult
to state the amount of the indebtedness of
the people from the want of statistics. My
opinion is that one third of the aggregate
value of the personal property is not too
high an estimate. My experience as a law
ver in the settlement of estates has led me
to this conclusion, and it is confirmed by a
statement furnished me from the records of
theOrdinary's office of the District in which I
live. Taking these data then as an ap
proximation of the truth, how stands the
case ? Before the war, the property of the
State was sufficient to pay the debts of the
people and leave them two thirds of their
personal estates besides their. lands. How
is it now since slavery, has been abolished
and two hundred and eighty millions of
property confiscated? I do not take into
consideration the havoc which has been
played with other species of property, the
depreciation of real estate and stocks of
all kinds, nor the waste and destruction of
property during the war; the smoking ruins
of this one beautiful city and the desolating
track of the conqueror from Savannah to
the North Carolina line. If all these were
taken in the account, the figures would be
still higher. All that is left. to pay debts
with are the lands, which estimated at one
balf of their average value before the war,
amount to forty-two millions dollars. We
have then the result-ninety-three millions
dollars of debts and forty-two millions dol
lars to pay with, that is to say, the property
left will not pay half the amount of the
debts. I am~ satisfied that these figures are
too favorable to the debtor class. Their
condition is even worse than I have repre
sented it.
Now when we come to consider what will
be the fate of our people thus reduced to
poverty, as they will be, if they are forced
now to pay their debts, the mind is almost
overcome by the picture of distress and
misery that rises up in the future. We can
scarcely find a paiallel in modern history.
No conqueror in modern times has imposed
such contributions upon a prostrate foe.
No Government in modern times has im-i
posed such a heavy penalty upon an insur
gent people. The partition of Poland, the
long and pitiless oppression of Ireland, the
military despotism of Austria in Italy, are
great crimes in history, but I question
whether either of these has resulted in in
flicting as great a loss of property upon the
people as the results of the war have brought
upon us. The wealth of our people consist
ed in negro property. It was property un
der the constitution and laws, but with the
stroke of a pen it has been blotted out, and
we have submitted to the act,and all its con
sequences, an Iliad of woes, have been en
tailed upon us and our children. One would
suppose that this sacrifice would have been
sufficient to satiate the revenge of even al
radical congress without other burdens and
penalties being imposed upon us.
I have now shown, I think, that the peo
pe have just grounds for the appeals which
they have made for legislative~ interference
and relief; that they are right in the con
clusion that the necessity exists for legisla
tion to avert the progress of the evils which
threaten the destruction-of all their hopes of
restoring the States to any measure of pros
perity in the future. If debtors are to be
pursed in the usual way, that is to say,
sued, arrested, imprisoned, and their prop
erty sacrificed at Sheriff's sales, what will
follow? The immediate consequence will
be a vast deal of individual suffering. A
majority of our best citizens will be com
pelled to surrender their estates, and earn a
subsistence by the labor of their hands.
The old and the young, of both sexes, and
of all conditions, will be reduced to this ne
cessity. But this is not the worst. The
class of persons brought to this condition,
as soon as they can get the means, will
leave the State in search of lands upon
which their labor will be more remunera
tive. As it is now, there is a strong ten
dency in this direction, but it will be in
reased, and the tide of emigration will be
swelled as time rolls on, until the best part
of our population will be lost, and our lands
cnne;d in ihe hriar and the bramnble. Is
it in this way that the prosperity of the
State is to be revived? Propositions are
now being made to encourage emigration
into this State from Europe. While you
extend your hand to the European peasant,
you are driving your own people from their
native soil. Who will. own these lands if
the present occupants shall be forced.to sell
them or have them sold under legal pro
eess ? Toe few creditors who are not ruined
by the operation and foreign capitalists'
These will displace our present landholders,
and the latter will become their tenants
and laborers, or wanderers abroad. Nor
will it be long before this result will be ac
complished. History tells us as a striking
fact, that in twenty years after the con
quest of England by William the Norman,
almost all the lands of the Kingdom had
passed into the hands of strangers. That
result will follow the surrender to our con
querors in a much shorter time. In this
transition from lords of the soil to serfs
and tenants, our people will suffer all the
evi's which I have depicted, and all depart
ments of industry will languish and die.
Not only will our material interests be thus
affected, but all the means of moral and in
tellectual improvement. Our schools and
colleges, all our religious and charitable in
stitutions, will linger in their present con
dition of prostration and exhaustion. Our
children will grow up in ignorance. The
State exhausted of resources will scarcely
be able to float upon the ebb-tide, drifting
her to destruction. Her wealth and power
all the elements which constitute the great
ness and prosperity of a people, will be
wanting for years to come. The present
generation will have passed away before she
v:ill regain her former prosperity and power.
The condition of the country then being
such, that some remedial legislation should
be had, we come now to consider the char
acter of the Legislation proposed by the
resolutions. The first resolution proposes
to amend the insolvent laws of this State.
The insolvent laws of this State provide
for the discharge of debtors petitioning for
their benefit only when they are under
arrest on what is termed mesne or final
process-the writ which brings the party
into court, or the execution against his
person. The resolution proposes to amend
these laws so as to give the debtor the
right to petition for his discharge on his
own mQtion without suit brought or execu
tion issued against him. A discharge under
these laws as they now stand, relieves the
debtor only from the debtsof suing creditors
and of those who accept a dividend under
his assignment. The resolution proposes
to amend these laws so as to discharge the
debtor from all debts whether in suit, or
not upon complying with the condition of
a complete surrender of all his property
and effects. The object of these amend
ments is to give to debtors the benefit of a
bankrupt act, to relieve themi of their pre
sent embarrassments, and secure to them
the enjoyment of their future 7scquisitions
of property. Does not the extraordinary
condition in which this class of persons have
been placed, by no default of their own, but
by the aot.s of the Government, justify these
amendments of the law? Do not the
interests of the State and justice to these
persons require that they should be per
mitted, after giving up all that they possess
to their creditors, to resume their avocations
in life, and build up Dew estates by their
energy and enterprize ? No department of
industry will revive and flourish so long as
the people are oppressed by thre load of debt
which now weighs them down, and para
iv zes all their efforts to retrieve their losses.
No sentiment of moral obligation will be
found sufficiently strong to convince the
people in their present condition, that, it is
their duty to devote the remainder of their
lives to the payment of their debts. How
ever, much we may commend such a senti
ment, it will be found that it is too feeble
in the minds of the great mass of the people
to accomplish any practical good. True
statesmanship always takes things as they
are, not as they should be, and adapts its
policy to the attain.nent of the greatest
good upon that assumption. So long as the
people have no reasonable prospect of re
lieving themselves of the. embarrassments
which envelop them, they will have scarcely
any motive to accumulate property, and
without this motivre,they will be useless mem
bers of society. As to the expediency of
these changes of the law, I cannot conceive
how a doubt can be entertained. But it
may be asked, has the Legislature the
power to make these changes ; can it pass a
bankrupt law ? The better opinion seems
to be that the Legislature has this power;
that it has concurrent jurisdiction with
Congress, and that the only qualification of
its right to exercise it, is that C~ongress
has not exercised it. In other words, that
the power delegated to Congress to pass a
bankrupt law is not exclusive, and if it
withholds its hand, the State Legislatures
may exercise the power. In the opinion of
the court in the case of Alexander vs. Gib
son, reported in 1st Nott & McCord, this
question is'discussed, and the doctrine laid
down as I. have stated it. And in the
separate Qpinion which Judge Cheves de
livered in that case, although he differed
with the court upon the question of power
-believing that Congress had exclusive
power over the subject, he said: "But a
true construction of this part of the con
stitutioni does not forbid the release of the
present and future property of a debtor
who surrenders all his property to his
creditors, whether he be sued or not. The
distinction between debtors who are im
pleaded and those who are not, is onily
material as it regards the power of thre
State Legislatures and the effect of State
laws. Wheresoever the power may rest, it
is within th. ,Cnt tional~ extent i Legise
Lative authority in the United tates, tb . re
lease an. insolvent debtor, from the claima
Df his creditors, (or if it be deeme4 more
icceptable to extingoish their' reinedy,)
upon his giving up his property, *ithout
impairing the obligation of contracts in the
sense of the Constitution of the United
Although I have found that there is a
difference of opinion amongst judges and
lawyers upon this question, I think the
weight of the argument is in favor of the
proposition, that the State has the right to,
pass insolvent or bankrupt laws having the
operation, in its fullest extent, which the
resolution pi-oposes. There is no bankrupt
law of Qongress now in force, and if the
view taken be correct, this Legislature is
free to exercise the power. The next
resolution. proposes.: to bolish inprison
ment for debt. The :constitutionality of
such a measure cannot te called in question.
All the authori^ies concur in. this view.
The point has been expressly decided in
this State, in the case of Lowden vs, Moses,
reported in 3d. McCord. Imprisonment. for
debt is held to be no part of the law of
contracts. It belongs to what is called by
lawyers the Lex Fori, and can be altered or
abolished by the Legislature without viola
ting the provisions of the Constitution pro'
hibiting the enactment of 'laws impairing
the obligation of contracts, and ini the
application of the principle no distinction is
drawn between prior and future contracts.
It operates upon contracts made before. th
enactments of such a law as well as those
entered into afterwards. It is therefore
purely a question of expediency, whether.
this relict of a former. -age .should not be
stricken from our code of laws. It appearl
to me that this is an opportune time. for
abandoning this harsh and stern principle
derived from the common law, a principle'
which had its origin in less. enlightened
times and which, though modified and -eoft
ened by the influences of a higher civiliza
tion, is still enforced against unfortunate
debtors. It is the same principle that we
find announced in the curious opinion of
one of the judges of England, viz: "If a
main be taken in execution and he lie in
prison for debt, neither the Plaintiff, at
whose suit he is arrested, nor the Sheriff
who took him, is bound to, find him' m.;.
drink or clothes; but he must- live on his.
own or the charity of others; and if no,
man will relieve him, let him',die in the'
name of God, and so say I." Let us wipe
out 'from our Statute Book what is left of.
this principle, and. conform our laws to
the spirit of a more enlightened age. Now,.
when confidence is broken up, the best men
are exposed to arrest and imprisonment 'on
account of their misfortunes. Let us amend
our laws so that no one may be deprived Of
his liberty except for crime. This is alt
that an enlightened morality demands.
This resolution proposes to enlarge ez
emptions of property from levy .and sale.
The exigencies of the times require that
our law should be amended in this respect.
The exemption of a portion of tbe debtora
property upon his surrendering his estate
in payment of his debts is a humane pro
vision of the law, While South Carolina
has many laws uznd institutions which com
mend themselves to our judgment, she his.
dealt hardly with debtors. *The property -
now exempted is a mere pittance-a cow
and calf, tools of one's trade, a few artides.
of household furniture, and ten. dollars worth
of provisions, but humanity and justieet
demand a change to meet the distress which
every where prevails. If practicable, I
would extend exemption to the homestead,.
and a sufficient number of acres of land te
support the owner and his family., By the
stroke of a pen a Republican President has
blotted out two hundred and eightynihlous
of their property. The State and .people.
have submitted to it; and now I ask in their
name that the Legislature shall secure to
them a remnant to live upon the remainder
of their days. Our Legislation heretofore
has been too much on the side of the credi
tor. But where great corporations are in
volved, a different principle is sought to be
establisied. I see a petition on our table*
asking that the stockholders of banks be
relieved from liability for the bills' which
they are unable to redeem. I sympathize
with them in their losses. I am willing to
go as iar se any man in extending relief- to
them, because they acted, nobly during the
war, in sustaining our credit, but I am not
in favor of class, legislation, which leaves
the great body of the people without relief.
The third resolution proposes the post
ponement of the remedial process of .the
courts for the collection of' debts. The
qualification restricts the proposition to such
legislation as will.not conflict with the Con
stitution of this State, nor of the United
States. If the courts can be postponed,- or
the times of their sitting altered so as5 to ac
complish th3 end desired, without conflicting~
with the constitutional prohibition against
the enactment of laws impairing the obhiga- -
tion of contracts we will then have steered
clear of the principle, decided in the late
case before the Court of Error's in which the
Stay Law was pronounced unconstitetional,
I acknowledge the obligation imposed upon
legislators by tbe Constitution, and it is our
duty to confine our action within the scope
of legislative power. Nor would I, except
in extreme cases, involving great publie
interests or the safety of the State, presume
to set up my judgmient in confitet with the
decisions emanating from that tribunal
which, under the Constitution and laws, is
the rightful expounder of both. But I trust,
sir that the time has not yet come when
freedom of opinion and discussion has ceased
to be prized as one of the dearest rights of
the citizen. I trust that I shall not render
trf onoxio'1s to the charge of being

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