The following text is from "Why the Solid South?", edited by Hilary Herbert, published by R.H. Woodward, Baltimore, 1890. It contains a rare view of what Confederate veterans faced when they returned home to West Virginia.
Chapter IX, by O.S. Long and W.L. Wilson
RECONSTRUCTION IN WEST VIRGINIA.
THE history of the state of West Virginia during the reconstruction period does not differ greatly from that of the other Border states. There was the same display of revengeful legislation, the same struggle of a minority to retain political power, that marked the transition between war and peace in Maryland, Missouri and elsewhere. The State Government being entirely in the control of the Republican party, and a full delegation of Republicans being present in both Houses of Congress, West Virginia was exempted from the operation of the reconstruction laws, and her people were left to deal with the problem of pacification in their own way, without interference by the Federal authorities and without much assistance from the tribe of carpet-baggers. The native Republicans were numerous enough to hold all the offices of value, and they were naturally averse to sharing the feast with strangers who came in after the fray. Hence the adventurers from Northern States, who played so conspicuous parts in the South in the years immediately succeeding the civil war, did not find a congenial field of operations in West Virginia and sought out other localities where the white Republicans were fewer and the negroes more numerous.
At the beginning of the war there was a strong Union sentiment among the people of the counties of Virginia now composing the state of West Virginia. There was a decided majority against the ordinance of secession; but after the war had actually begun, and the state of Virginia became the scene of conflict, very many of those who had voted against secession either enrolled themselves in the Confederate army or remained at home in either active or tacit sympathy with the Confederate cause, so that in 1863 when the new state was formed, a large majority of the legal inhabitants of the counties embraced within its limits took no part in the transaction. Out of a voting population in 1860 of more than 50,000, the state of West Virginia started upon its career with the expressed consent and approbation of less than 19,000 votes. The Union sentiment was strongest in the counties lying along the Northern and Western borders, or along the line of the Baltimore and Ohio Railroad; it was weaker in the interior counties; while in the counties upon the Southern and Eastern borders it was almost non-existent, the people being practically unanimous in support of the Southern cause. According to the reports of the Adjutant-General, the state of West Virginia was credited with furnishing to the Union army, from first to last, a total of 31,884 men. Several entire regiments which are credited to West Virginia, were recruited in Ohio or elsewhere, and officered by Ohio men. During the last two years of the war, when large bounties were paid for enlistments to complete the quota of troops called for, the volunteers came almost entirely from abroad, and when substitutes were secured to take the places of conscripted men, these substitutes were for the most part obtained in Northern cities or were newly-arrived immigrants from abroad. It is now impossible to obtain any accurate figures as to the number of soldiers furnished to the Southern armies by the counties composing West Virginia. The muster-rolls have been lost or destroyed, and it is not known that any record even approaching completeness is now in existence. Recruiting was active in many of the counties at the beginning of the war; but when the Federal armies advanced in 1861, of course enlistment in the Confederate army ceased at all points within the Federal line, though it went on with increased activity and thoroughness in the counties not under Federal control, and it can scarcely be doubted that the total number of West Virginians who served at one time or another in the Confederate army exceeded by several thousands the number who espoused the Union cause.
These facts are mentioned here simply for the purpose of affording some clue to the relative strength of the parties when the war closed and the era of reconstruction began. The returns of elections held at various times during the continuance of the war afford no trustworthy indication of popular sentiment. They are significantly one-sided, and show only that the people opposed to the party in power did not vote; not that they did not exist. The Constitution of ]863, and the officers elected under it, all derived their authority from a minority composed of scarcely more than one-third of the people of the state.
The Constitution of 1863 was, in the main, a fair, prudent and equitable instrument. True, it was afterwards warped by construction so as to tolerate the most prescriptive and unjust enactments, but that was the fault of the Legislature and the courts; the Constitution was right, but the courts were wrong. The Constitutional provision as to the elective franchise was contained in Section 1 of Article III. in these words:
"The white male citizens of the state shall be entitled to vote at all elections held within the election districts iu which they respectively reside; but no person who is a minor, or of unsound mind, or a pauper, or who is under conviction of treason, felony, or bribery in an election, or who has not been a resident of the state for one year, and of the county is which he offers to vote for thirty days next preceding such offer, shall be permitted to vote while such disability continues."
The Constitution declared in Section 6 of Article I., that, "The citizens of the state are the citizens of the United States residing therein."
These provisions are in the main similar to those relating to the same subject in the Constitution of Virginia and ef other states, and the restrictions upon the suffrage are only those which are usually imposed. They are prospective in effect and attach to no crime a punishment which had not been ordained before the offence was committed, and the disability to vote is made contingent upon conviction of the crime.
The first Legislature held under the new Constitution adopted a number of "war measures," such as acts for the forfeiture of the property of persons engaged in rebellion, and various other sanguinary resolutions, but it did not attempt to restrict the suffrage further than is provided in the section of the Constitution quoted above. The general election law passed at this session provided that,
"The supervisor and inspectors at every election shall permit all persons to vote who are residents of their township and qualified to vote according to the first section of the third article of the Constitution."
If a voter were challenged, he might be required to take an oath to support the Constitution of the United States and the Constitution of the state of West Virginia—only this and nothing more—and this oath alone was to be exacted from officers of the state. But at the same session—that of 1863—the Legislature seriously damaged the Constitution which the members had so recently and enthusiastically adopted and sworn to support, by enacting a law in the following terms:
"Every person elected or appointed to any office of trust, civil or military, shall, before proceeding to exercise the authority or discharge the duties of the same, take the following oath: I, A. B., do solemnly swear that I will support the Constitution of the United States and the Constitution of this state; that I have never voluntarily borne arms against the United States; that I have voluntarily given no aid or comfort to persons engaged in armed hostility thereto, by countenancing, counseling or encouraging them in the same; that I have not sought, accepted, nor attempted to exercise the functions of any office whatever, under any authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or Constitution within the United States hostile or inimical thereto; and that I take this obligation freely without any mental reservation or purpose of evasion."
This is the first appearance of the famous test-oath upon the statute books of West Virginia. It appeared a great many times afterwards: sometimes with additional clauses or with carefully drawn limitations; but always in its main features it was the same. Having set it out in full here, it will be hereafter referred to simply as "the test-oath" and will not be again presented in its entirety.
At the election held in the fall of 1864 there was very little opposition to the Republican candidates. A McClellan electoral ticket was put in the field a few weeks before the election, but it was voted for in only a few of the counties) and Mr. Lincoln carried the state, receiving 23,233 votes as against 10,437 votes cast for the Democratic candidate. There was no opposition to the Republican ticket for state officers. But the vote cast for McClellan, small as it was, seems to have alarmed the Republican politicians. The war was nearly over and it was apparent to all that the unequal combat must soon end in the triumph of the Federal arms. Already the Confederate armies were rapidly disintegrating. The rebels were coming home; not in battalions, nor even by squads; but singly and quietly they were seeking to rebuild their desolate homes and take their places in the ranks of peaceful avocation. There was nothing in the Constitution or laws of the state that could prohibit them from voting. There was danger that the will of the majority might be expressed at the polls; that the people, who are the source of all lawful authority in a government republican in form, might come to claim their own.
In this emergency the Legislature, on the 25th of February, 1865, proceeded to amend the election law which had been adopted in November, 1863, by providing that if the right of any voter were challenged at the polls, he should not be allowed to vote until he produced an affidavit, duly sworn to before and attested by a notary or other officer authorized to administer an oath, in which the unlucky citizen was required to swear that he had never voluntarily borne arms against the United States, "the reorganized government of Virginia," or the state of West Virginia, etc., etc., after the style of the test-oath for officers set forth above. Just why the voter was required to purge himself of any past hostility to the reorganized government of Virginia seems rather difficult to understand at this distance of time. The government of Virginia was reorganized at Wheeling for the purpose of giving its consent to the formation of the new state, and thus technically complying with one of the requirements of the Federal Constitution, and when that consent was given, the reorganized government took itself away to Alexandria and concerned the people of the state no more. Whether any human being ever bore arms against the reorganized government of Virginia who did not at the same time bear arms against the United States, to say nothing of the state of West Virginia, would have puzzled even the framers of the law to find out. But the phrase has a solemn jingle and hence was repeated in full in every clause of the oath.
It was immediately pointed out and contended by those who had regard for popular rights that the amendment to the election law was plainly and flagrantly in violation of the Constitution; that the Legislature had no power to pass such an act; and that the members who voted for it had deliberately and with full knowledge violated their oaths. In reply, the Republican members said, in effect, We know it is unconstitutional, but we mean to amend the Constitution itself in conformity with the act, and in the mean time we will enforce the amended law. Accordingly, on the 1st of March, 1865, the following amendment was proposed, to be added to the first section of Article III.:—
"No person who, since the first day of June, 1861, has given, or shall give voluntary aid or assistance to the rebellion against the United States shall be a citizen of this state or be allowed to vote at any election held therein, unless he has volunteered into the military or naval service of the United States, and has been, or shall be, honorably discharged therefrom."
The mode of amendment fixed by the Constitution required the proposition to be agreed to by a majority of each house of the Legislature; published in each county for three months before the next general election; agreed to a second time by both houses of the Legislature, and then submitted to a vote of the people, and if a majority of the qualified voters voting upon the question ratified the proposed amendment it became of force "from the time of such ratification, as a part of the Constitution of the state."
The Legislature elected in the fall of 1865, by excluding the votes of those who could only be lawfully excluded from the ballot after the proposed change had been made in the Constitution, met in January, 1866, and, on the 13th of February assented the second time to the proposed amendment, and provided for submitting it to a vote of the people at the election to be held for school and township officers on the 24th of the following May.
But the Legislature of 1866 went much further than any of its predecessors in the destruction of popular rights; in the establishment of an oligarchy; in the erection of a privileged class, in whom alone the power of government should reside. Fearful lest the election officers should fail to enforce the confessedly unconstitutional act of 1865 relating to elections by the people, they vested in the hands of the Governor of the state the right of the people to vote and enabled him to control the franchise. They went about it in this way: An act was passed for the registration of voters; a board of registration was to be appointed by the Governor in each county, consisting of three persons " from among the citizens most known for loyalty, firmness and uprightness;" the board was to appoint a registrar in each township, whose duty it was to place upon the roll of voters only those citizens who could take the test-oath. The township registrar was removable by the board of registration, and the board of registration was removable by the Governor. It was thus possible for the Governor to supervise the rights of every citizen, from the highest to the lowest. If a registrar was found to have scruples as to the exclusion of his neighbors from the polls, he was promptly removed and a more serviceable man appointed by the board of registration, and if the board became frightened by the prospect of being called upon to defend suits at law, the Governor could always be relied upon to remove any man who hesitated to do the work assigned to him. In fact, the whole machinery of registration was practically subject to the absolute and arbitrary will of the Governor; and when it is known that by subsequent enactments nearly all of the civil rights of the people were made dependent upon the registration; that the man who was not a registered voter was practically under sentence of outlawry; some idea of the vast power given to the Governor may be conceived.
During the year 1865, there had been much discussion in the newspapers and at public meetings as to the duty of election officers. It had been insisted that the amendment to the general election law could not be regarded as valid and that whoever enforced it or acted under it did so at his own peril. The supervisors and inspectors were threatened with suits for damages if they refused the ballot of any voter who possessed the constitutional qualifications. It was contended that a void act was void from the beginning and never could have any validity whatever, and therefore it could not protect the officer who enforced it. But in order to stiffen and encourage the officers, the Legislature provided that all suits brought against them for acts done in obedience to the unconstitutional law should be defended at public expense, and on the 17th of February, 1866, an act was passed "to prevent and punish the forcible or unlawful obstruction of public justice," by which it was provided that "no officer in the lawful discharge of his official duty under any act of the Legislature, or any order or proclamation of the Governor of this state shall be deemed personally responsible therefor (either civilly or criminally) by reason of such act, order or proclamation being afterwards adjudged by any Court of this state to be unconstitutional and void."
The same Legislature required all the supervisors and inspectors of election to take the test oath before entering upon the discharge of their duty, and provided that u in no case shall the votes taken at any place of voting be counted unless said oath so appear on the poll books."
Having thus arranged the election law so as to enforce before ratification the constitutional amendment which they wished to adopt, the Legislature proceeded to punish the members of the bar who had dared to call in question the validity of their acts, and on the 14th of February, 1866, it was enacted that no attorney-at-law should be allowed to practice in any court, or before any justice or board of supervisors until he had taken a test-oath that he had not "since the twentieth day of June, 1863'' borne arms against the United States, etc. The date inserted in the oath was the date of the formation of the state of West Virginia, but why attorneys were limited to that date while voters were required to swear that they had not been engaged in hostility since the first day.of June, eighteen hundred and sixty-one, and officers were compelled to declare that they had never borne arms against the United States, does not clearly appear. The attorney's test-oath inflicted a great hardship upon a large class of citizens, and produced much unhappiness and discontent. It was frequently brought into question before the courts, as will be mentioned hereafter. Prior to the election of school and township officers, held on the 24th of May, 1866, there was an active and exciting canvass. The war was over, hostilities having entirely and forever ceased during the preceding summer. The Confederate armies had been disbanded, but the fury of the Republican politicians seemed to gather strength from the absence of physical danger. The Boards of Registration were appointed; township registrars were designated, and the work of disfranchisement was formally begun. Not content with excluding all who were not willing to take the test oath, the registrars doubted the loyalty of nearly every citizen who was known to be opposed to the arbitrary measures adopted by the Legislature, and assumed the right to refuse to register many who produced before them the affidavit required by the law. An appeal to the Board of Registration was permitted to any person aggrieved by the action of a township registrar, but in most cases the appeal was but a prolongation of the farce. The Boards of Registration and the registrars were all of the same party, and it was found difficult to procure in many of the counties respectable citizens who would consent to engage in the odious task; but where men of honor and high standing could not be found, the Governor was content to entrust the administration of the law to persons less scrupulous, and so the work was done. When the vote upon the proposed constitutional amendment had been cast and counted, it was declared that 22,224 votes had been given for ratification, and 15,302 for rejection, and that the amendment was therefore ratified and in full force as a part of the Constitution of the state. If the law under which the amendment was submitted was constitutional, there was no necessity for the amendment; if the election law was unconstitutional and void, then the amendment had not been legally ratified.
The party in power now felt that it had gained a new lease of existence and that the way was open for the adoption of any further proscriptive measures which might be deemed desirable, while the opponents of proscription saw in the large vote which, in the face of many obstacles, had been cast for rejection of the amendment the nucleus of a party which they felt sure would grow. At the state election in the Fall of
1866, the Republican ticket received 23,509 votes as against 16,791 for the opposition.
The Legislature which assembled in January, 1867, was, as might have been expected, more bitter and vindictive than any of its predecessors. An act passed February 19, 1867, required all jurors empannelled for the trial of cases, civil or criminal, to be registered voters. An act passed February 27, 1867, provided that no person, male or female, could be employed as a teacher in any of the public schools until he or she had taken the test-oath. Another illustration of the blind rage of this Legislature is found in a solemnly enacted law that no Virginian should be permitted to collect a debt due to him from any citizen of this state: the benefits of the act, however, were to accrue only to the loyal people and any person who could not take the test-oath might be sued by a citizen of Virginia in the old-fashioned way.
On the 25th of February, 1867, a new act was passed for the registration of voters and the former one was repealed. This may have been done through some apprehension lest the act of 1866 might be set aside because of its having been passed before the ratification of the amendment to the Constitution. The new law was more stringent in its obnoxious features than the old one had been. If the registrar "doubted the loyalty" of any applicant for registration, he required him to, take the test-oath; but this was not to be considered conclusive. The applicant was required to "make it appear that
he is (was) a qualified voter," but if he failed so to make it appear, his application was rejected. He might then appeal to the board and try to "make it appear" that he was entitled to registration, but such appeals were usually in vain. The members of the board might also, upon their own motion, strike off the name of any registered voter whom they might think not entitled to vote—a power which they exercised freely and without scruple. The citizen who was summoned to show cause why his name should not be stricken from the list of registered voters might as well abandon hope at once. How could he make his right appear " to the satisfaction of" a tribunal by which he was condemned already? If the board of registration said " we doubt your loyalty," of what avail was the testimony of witnesses on behalf of the accused? In some instances honorably discharged soldiers of the Union army were disfranchised because they voted against the faction in power, and the boards of registration therefore "doubted their loyalty." It was a matter of party necessity to keep down the growing strength of the opposition, anil behind the registrars and boards of registration, goading them on in the work of disfranchisement, loomed the awful form of the Governor who was either a candidate for re-election or for a seat in the Senate of the United States.
The Legislature of 1867 left but little in the way of proscription and intolerance to be enacted by its successor in 186$. But on the 2nd of March, in the latter year, it was enacted that no interest upon any debt contracted prior to the 1st day of April, 1865, should be recoverable in any action for the time during which the creditor had been within the Confederate lines. It was also enacted that no suit or action, civil or criminal, should be maintained against any person "for any act done in the suppression of the late rebellion." The registration law was amended so as to provide for the punishment of boards of registration who had stricken off names improperly; an abuse of power which had become so serious and so flagrant as to alarm even a Republican Legislature. A joint resolution was passed declaring that "Andrew Johnson, President of the United States, in the attempted removal of the Secretary of War, and the designation of the Adjutant General to perform the duties of the office ad interim, the Senate being in session, has been guilty of a wilful and flagrant violation of law, and in the opinion of the Legislature of West Virginia, ought to be impeached for high crimes and misdemeanors." The Governor was authorized to tender to Congress the assistance of West Virginia in sustaining the authority and enforcing the laws of the United States.
A special session of the Legislature was held commencing in June, 1868, and continuing during the remainder of the year. The chief business transacted was the adoption of a code which gathered into a compact and convenient form the scattered enactments of the past five years. Very little political legislation was attempted. The registration act was further amended so as to provide that no person whose name had been stricken from the list by the board of registration could afterwards be registered, except by consent of the board. A number of special acts were passed permitting attorneys to practice law without taking the test-oath; and one was passed to permit a young lady to teach school without taking the oath, but in this case the Legislature cautiously and prudently reserved the right to alter or repeal the act whenever in their discretion they might think proper to do so—evidently intending to recall the magnanimous act if the young lady should dare to engage a second time in armed rebellion against "the reorganized government of Virginia," &c.
At the state election held in the fall of 1868, there were 26,885 Republican votes, as against 21,698 conservative and Democratic.
In 1869 a number of acts for the relief of attorneys were passed, and on the 7th of February, 1870, the act requiring attorneys to take the test-oath was formally and finally repealed. The Legislature in 1870, also repealed the act which required the petitioner for a rehearing to take the test oath when decree had been rendered against him in his absence and without personal service of process. The same Legislature proposed what was afterwards known as "the Flick Amendment," from the name of its patron, restoring the constitutional provision as to the qualifications of voters to the terms originally embodied in Section 1, Article 3, of the Constitution of 1863, omitting the word "white." This was the last Legislature in which the Republican party had a majority, for, at the election held in October, 1870, the Democratic and Conservative party carried the state casting 28,020 votes as against 26,475 given for the Republican nominees. It will be observed that the Republican vote was only 410 less than that in 1868, which was the highest point it had ever reached. It was larger than that of 1864 or 1866, the period during which all of the odious and oppressive legislation>had been had; the period during which an aggressive and unscrupulous minority of the people of the state had been enabled to rule the majority with an iron hand.
From first to last there was expended for the expenses of the registration of voters and for the defense of suits instituted against registrars and boards of registration the sum of $53,200, not including the sums expended from the Governor's contingent fund the items of which were not made public. Nor does this total include $500, which was paid to William Ware Peck, a lawyer who was imported from somewhere in New York, to assist the Attorney-General in excluding native attorneys from practicing their profession.
The acts of the Legislatures in West Virginia, to which attention has been directed in the preceding pages, were mainly those relating to the right to vote, but the acts affecting the property rights of the ex-confederates were, perhaps, more severely felt. In accordance with the terms of an act passed February 28th, 1865, no person could bring suit or obtain process in any court without being required to take the test-oath if it was demanded by the defendant. This completely closed the courts against any Southern soldier who sought redress for injuries or for the collection of a just and valid debt. During the later years of the war, a great many suits had been instituted against persons who were within the lines of the Confederate army. Proceedings were had by order of publication and when the defendants failed to appear attachment was issued and property was seized. As the general law relating to attachments and suits against non-residents then stood, the party against whom these summary proceedings were had might come into court at any time within five years and file his petition asking that the judgment, order or decree obtained by default of appearance might, be set aside and a hearing had as to the matters in controversy. But to the ill-starred ex-confederate was conceded no such right. Only the man who could take the test-oath was permitted to have his case reheard. Thus the soldier who came back, after the surrender at Appomattox, and found his property in the hands of strangers, could not only not sue, he could not make defense to the action which had been brought against him in his absence and without his knowledge. But this was not all. If any property remained to him, he became a target for. what were known as " war trespass suits," and judgments were piled up against him, as fast as courts could render them, at the demand of importunate suitors. If, during a raid of Confederate soldiers within the borders of West Virginia, while the war was in progress, the cattle or horses or goods of any loyal citizen were seized for the use of the army, and consumed or carried away, the person so injured brought a "war trespass suit" against any ex-rebel he could find who had any property left. It was not at all necessary that the defendant should have been one of the company or squad who captured the goods; it was not necessary that he should have been present in any capacity at the time when and place where the offense was committed; it was not necessary that he should have been in the confederate service at all; judgment was invariably rendered against him for whatever amount a " loyal" jury might assess. For the greater convenience of plaintiffs and for the greater certainty of obtaining judgment in cases of this kind, it was provided that suits for causes of action arising iu certain counties where Southern sentiment prevailed might be brought in other counties where popular opinion against injustice was not so strong. As has been already stated, no person could sit on a jury without having taken the test-oath, but it was feared that juries might be overawed or influenced by the indignation of their neighbors, and hence the trespass suits were generally brought remote from the home of the defendant, in some county where the Republicans were aggressive and had full control, and were still carrying on the war.
The condition of the ex-Confederate soldier in West Virginia during the five years which immediately followed the end of the war, was, therefore, reduced to this: He was denied citizenship in the place of his birth; he could not hold office; he could not vote; he could not practice law; he could not sit as a juror; he could not teach school; he could not sue in the courts; he could not make defense to suits brought against him in his absence, and at least one of the circuit judges held that he could not qualify as an executor or administrator, and hence when he died he must commit to a Republican neighbor for distribution, whatever estate he had been able to save from the rapacity of those who had sued him for offenses for which he was not guilty.
But the student of these legislative acts may well inquire: Where were the courts during all this period and why were they not invoked to protect the people? The answer is found in the first five volumes of West Virginia Reports. The courts went hand in hand with the Legislature; whatever one did the other pronounced good. There is not a single instance during all the period between 1863 and 1870 in which an act or a section of an act, passed by the Legislature, was pronounced unconstitutional by the Supreme Court of Appeals. There were plenty of cases; the power of the court was very frequently invoked; but no ex-Confederate was ever relieved from the unjust judgment which had been rendered against him in the inferior tribunals. The Circuit Courts were completely under the control of the Legislature. One circuit judge was impeached and removed from office because he had appointed an ex-Confederate to be the temporary sheriff of one of the counties in his circuit; another was impeached and removed because he had permitted three distinguished lawyers to practice in his courts without taking the Attorney's test-oath. Other judges took warning and treated the legislative body with marked deference. The several statutes imposing disabilities upon the returned Confederates were, one after the other, as they came under review by the Supreme Court of Appeals, sustained, and these decisions were many times repeated during the years between 1866 and 1871.
In William Stratton's case, (1 W. Va., 305), the court sustained the constitutionality of the test-oath for officers.
In Lively vs, Ballard, (2 W. Va., 496), the court sustained the constitutionality of the test-oath for jurors.
In Randolph vs. Good, (3 W. Va., 551), the act of February 25, 1865, requiring voters to. take the test-oath, passed before the Constitution of 1863 had been amended, was declared constitutional by the court.
In exparte Hunter et al., (2 W. Va., 122), the court affirmed the constitutionality of the test-oath for attorneys.
In Higginbotham vs. Haselden & Rohrbaugh, (3 W. Vai, 17), the court sustained the validity of the test-oath for suitors, and extended its operation to the right of obtaining an appeal, writ of error or supersedeas.
The decision by the Supreme Court of the United States in "The Prize Cases," at December term, 1862 (2 Black., 635), was generally understood by the members of the legal profession as conceding to the armies of the Confederate States, "belligerent rights." This construction was amply sustained by many subsequent decisions of the Supreme Court, in which reference was made to the cases mentioned. (97 U. S., 594,605; 100 U. S., 158 and cases cited.) It was a concession made necessary by the dictates of humanity and civilization in view of the magnitude of the war and its long duration. Under the doctrine of "belligerent rights," neither of the combatants can afterwards be held liable, either civilly or criminally, for any act done " in accordance with the usages of civilized warfare." But the decisions of the Supreme Court in this regard were nullified in West Virginia. Again and again was the plea of belligerent rights tendered in bar of the trespass suits which sprang up plentifully against the returned soldiers of the Southern cause, and as often was the plea overruled and the doctrine denied. The following are a few of the cases in which the Supreme Court of Appeals in West Virginia reversed the Supreme Court of the United States upon this question alone: Hedges v. Price, 2 W. Va., 192; Cunningham v. Pitzer, Idem, 267 ; Lively v. Ballard, Idem, 496; Echols v. Staunton, 3 W. Va., 574; Caperton v. Martin, 4 W. Va., 138; French ^ White, Idem, 170; Caperton v. Nickell, Idem, 173; Caperton v. Bowyer, Idem, 176; Carskadon v. Johnson, Idem, 356; Caperton v. Ballard, Idem, 420. Commenting upon some of these cases, the learned reporter of the American Decisions, Vol. 94, p. 325, remarks: "The court seems rather to have been actuated by a desire to exhibit its patriotism than to consider the question presented to it calmly and judiciously and to give its decision accordingly."
In the case of Hood et al. v. Maxwell, (1 W. Va. 219) the owner of a mill in Barbour county sued Hood, who was a commissary of Virginia troops acting under the orders of Governor Letcher, for the value of a lot of flour taken for the use of the troops in 1861. The cause of action arose in Barbour county, but the case was tried in Marion county and a judgment was rendered for $1516.25. A writ of error was taken and the Supreme Court of Appeals affirmed the judgment in 1866. The sixth point in the syllabus is as follows: "No state in the Union has a constitutional right to secede from it."
Ashby's cavalry came into the village of Hardscrabble in Berkeley county on the 10th of September, 1861. Henry Shepherd and John Shepherd were private citizens residing in the neighborhood and not in any manner engaged in the Confederate service. Ashby's men seized the goods in a store belonging to A. R. McQuilkin, and Abraham Shepherd, one of the cavalrymen, gave to his father, Henry Shepherd, an umbrella taken from the store. Another of the soldiers gave to John Shepherd a straw hat. Suit was instituted against Henry Shepherd and John Shepherd and judgment obtained for $500, the value of all the goods taken, and this judgment was affirmed by the Supreme Court of Appeals.
John Cunningham was sued in the Circuit Court of Berkeley county by H. B. Pitzer, for taking and carrying away two hundred bushels of wheat belonging to the plaintiff. It was shown that the wheat was taken by the Confederate army, and threshed on Cunningham's machine, and that Cunningham was forced by the soldiers to assist in threshing the wheat. Judgment was rendered against Cunningham for $287, with interest from the 26th day of August, 1864; and the judgment was affirmed.
On the 24th of October, 1862, a man named Mace took from Maiden, in Kanawha county, thirty barrels of oil belonging to J. G. & J. M. Staunton. Mace was acting under orders of E. McMahon, then acting as Chief Quartermaster of the Confederate army commanded by General W. W. Loring, and there was evidence tending to show that the oil was seized by order of Loring, issued while in command. On the 15th of October, General Loring was relieved of command, and General John Echols was placed at the head of the army in the Kanawha valley. The oil was taken away and delivered to Thomas L. Broun, at Dublin Depot, for the use of the Confederate government, Broun being then a quartermaster in the Confederate army. In July, 1865, the Stauntons instituted suit in Kanawha county against John Echols for $1935, the value of the oil so taken and carried away. Judgment was rendered for $1935, and that judgment was affirmed by the Supreme Court of Appeals.
On the 28th day of October 1862, Nicholas Martin was arrested in Monroe county, by Confederate soldiers, and taken as a prisoner to Richmond. In June, 1866, Martin instituted suit for illegal arrest and false imprisonment against Allen T. Caperton who had been Provost Marshal of the Confederate forces in Monroe county at the time of the arrest. The defendant plead the statute of limitations in force in Virginia when the offense was committed, " belligerent rights," and a pardon of the President of the United States. The case was tried in November, 1867, and judgment was rendered against Caperton for $600, and this judgment was affirmed by the Supreme Court of Appeals, at the January term in 1870.
On the 28th of November, 1864, General Rosser's brigade of Confederate soldiers took the town of New Creek, then a military post of the United States, fortified and garrisoned by about 1200 troops under command of Colonel Latham, most of whom were captured, although some fled and escaped. Among the prisoners taken was John R. Carskadon, a farmer living in the neighborhood, a Union man but not in the service. He was held as a hostage for James Parker, also a non-combatant, who had been arrested by United States soldiers some time before, and was then confined in the military prison at Wheeling. In 1865, Carskadon instituted suit for trespass, and assault and battery against George H. Johnson, who was a private soldier in Rosser's command and one of the squad who made the arrest. The Circuit Court sustained a demurrer to the evidence, but this decision was overruled by the Supreme Court of Appeals, in 1870, and judgment rendered against Johnson for $450.
The foregoing are merely samples selected at random from the cases reported in the first five volumes of the West Virginia Reports. The appealed cases were not a tenth of the whole number of these trespass suits which were successfully prosecuted in the Circuit Courts. Nearly every ex-Confederate soldier was financially ruined by them, and even if he had no property out of which the judgment might be then satisfied, the judgments stood upon the dockets as a lien against all that he might thereafter by diligence and economy acquire.
Before dismissing this part of the subject, the professional reader may feel some interest in learning what became of these judgments obtained by "war trespass suits," when the minority was hurled from power in West Virginia and the people assumed the right to govern themselves. Article VII.' of the Constitution adopted in 1872, section 35, is in these words:
"No citizen of this state who aided or participated in the late war between the government of the United States and a part of the people thereof, on either side, shall be liable in any proceeding, civil or criminal; nor shall his property be seized or sold under final process issued upon judgments or decrees heretofore rendered, or otherwise, because of any act done in accordance with the usages of civilized warfare in the prosecution of said war by either of the parties thereto. The Legislature shall provide, by general laws, for giving full force and effect to this section by due process of law."
The Legislature at the sessions of 1872-73, provided that upon the filing of a petition setting forth the fact that a judgment or decree had been rendered against the petitioner for acts done in accordance with the usages of civilized warfare, such judgment or decree should be set aside and a new trial awarded, but the Supreme Court of Appeals in Peerce vs. Kitzrailler (19 W. Va., 564), held that this mode of procedure was not "due process of law," but it also held that the relief sought for might be obtained by a proceeding in chancery for an injunction against the execution of the original judgment and that this would be " due process of law." The mode of procedure thus indicated was pursued and the judgments and decrees complained of were set aside by the Circuit Courts. The action of the Circuit Courts in thus setting aside these judgments was in several cases appealed from and sustained by the Supreme Court of Appeals. David Freeland had recovered a judgment in 1865, against Joseph V. Williams for $1,110 for cattle carried away for the use of the Confederate army, and this judgment had been affirmed by the Supreme Court of Appeals at the July term in 1867. The judgment remained unsatisfied, and in August, 1883, Williams filed a bill in chancery praying that the judgment be declared void and that Freeland be perpetually enjoined from collecting the same. The relief prayed for was granted by the Circuit Court and Freeland then presented to the Supreme Court of Appeals a petition for appeal in the manner provided by law, which petition was refused, and thereupon Freeland appealed to the Supreme Court of the United States. On the 13th of May, 1889, the opinion of that court was handed down by Mr. Justice Miller, in which it is held that the provision in the West Virginia Constitution of 1872, in relation to judgments or decrees rendered because of acts done according to the usages of civilized warfare "does not impair the obligation of a contract within the meaning of the Constitution of the United States, when applied to a judgment previously obtained, founded upon a tort committed as an act of public war." Also that "a bill in equity to invalidate a judgment obtained against the defendant for a tort committed under military authority, in accordance with the usages of civilized warfare and as an act of public war and to also enjoin its enforcement is ' due process of law,' and is not in conflict with the Constitution of the United States." (131 U. S., 405.)
A full report of the action of the courts in relation to the attorney's test-oath would be too voluminous for the purposes of this chapter. A few cases must suffice.
Andrew Hunter, Samuel Price, W. S. Summers, Samuel Miller and Caleb Boggess applied to the Supreme Court of Appeals, at its July term, in 1866, for permission to be admitted to practice law without being required to take the test oath for attorneys provided by the act of the Legislature, passed February 14th, 1866. Several of the applicants produced pardons signed by the President of the United States. The questions involved were elaborately argued pro and con, and the Court took time to consider. At the January term, 1867, the decision was announced, denying the application. The syllabus declares that the act imposing the oath is not unconstitutional, and that a pardon from the Federal Government cannot remove a disability imposed by the laws of West Virginia. (2 W. Va., 122.) The opinion in the case occupies forty-six pages of the volume of reports. Shortly before this decision was announced the Supreme Court of the United States had handed down its opinion in the Garland case (4 Wallace, 333), in which an act of Congress passed January 24, 1865, prescribing a test-oath for attorneys practicing in the Federal court was held to be ex post facto, and, therefore, in violation of the Constitution of the United States and null and void. This decision, by the highest court in the United States, was brought to the attention of the Judge who had already prepared his opinion denying the petition of the attorneys, and, not willing that so much labor should be thrown away, the learned Judge added a few lines to the essay, remarking, "After a careful examination of that decision, as furnished, I am constrained to adhere to the opinion already advanced." This performance so delighted the partisan majority in the Legislature, then in session, that it, by joint resolution, ordered five thousand copies of the opinion to be printed in pamphlet form for distribution by the members.
As late as January, 1870, William A. Quarrier and Nicholas Fitzhugh applied for admission to practice without taking the test-oath, and produced pardons signed by the President of the United States, but the application was denied, the Court holding that, although the President's pardon might entitle the attorney to practice in the Federal courts, it could not restore to him the right to practice in the courts of West Virginia. (4 W. Va., 210.) In this case Edwin M. Stanton, "the great War Secretary," appeared in opposition to the prayer of the petitioners, and harangued the Court for an hour upon the theme that rebels had no rights which loyal men should respect. It was an appeal which Judge Nash, of Ohio, himself an ardent Republican, pronounced a disgrace to the distinguished man who had uttered it, and a shame to the Court that had listened to it without rebuke.
The action of the Circuit and District Courts of the United States in West Virginia was in honorable contrast with that of the state judiciary. A great many indictments for treason were found by the grand juries, but not one of them ever came to trial. They were continued from term to term, in anticipation of the subsidence of popular prejudice and passion, and eventually all were dismissed. The returned confederates took the oath of amnesty required by the President's proclamation of May 29th, 1865, and were no further molested by the Federal authorities. Attorneys who were debarred from appearing in the state courts met with no obstacle to the resumption of practice in the tribunals of the United States, the state authorities being much more fierce and vindictive in the punishment of rebellion against the United States than was the power against which the offense was mainly committed.
But no history of the reconstruction period in West Virginia would be complete without some reference to the part played by Nathaniel Harrison, Judge of the Seventh Judicial Circuit. This circuit embraced the counties of Greenbrier, Nicholas, Monroe and Pocahontas. It has a large area in the southern part of the state and nearly all of the inhabitants were either in active service in the Confederate Army or aided and abetted the Southern cause. During a considerable portion of the period of the war the counties mentioned were within the lines of the Confederate Army. Of course, public sentiment was overwhelmingly Southern. In these counties the registration law displayed its full power and operated in all its beauty. Enough men were found or imported who, by the help of an imperfect memory or a flexible conscience could, or rather did, take the test-oath and hold all the offices. Occasionally the registrar would "doubt the loyalty " of one of the registered voters and strike his name from the list, and thereby render him incapable of holding office, when all of the official power and perquisites he possessed would be parceled out among the remnant of the faithful. In the town of Lewisburg so many names had been from time to time erased from the list that the registrar gained the soubriquet of "Old Scratch," by which he was commonly known, and the voting population had been reduced to seven: "Old Scratch" and his son, two Irishmen and three negroes. The registrar held nine petty offices. Of this circuit Nathaniel Harrison was appointed Judge in 1865 by the Governor of the state. Harrison was descended from a good family in Virginia and had resided several years in Philadelphia just before the war. H« was a man of more than usual mental ability and was well versed in the law. Some time, after the opening of the war he went through the lines and appeared in Richmond. He solicited appointment on the staff of General Chapman of the Virginia militia; not getting this he sought position in the quartermaster's department of the Confederate Army; not succeeding in this he sought employment in the bureau of exchange of prisoners of war and again failed of success. Disappointed and soured and attributing his ill success to the opposing influence of Allen T. Caperton, who was at that time a member of the Confederate States Senate, he drifted into Monroe county where his wife owned the Salt Sulphur Springs property, and where he continued to reside until his appointment as Judge. Not thinking it probable that his record would ever be brought up against him when possessed of the power of oppression which the office would give him, he took the test-oath, entered upon his duties as Judge, and straightway out-Heroded Herod in his persecution of the returned Confederates. He seems to have been especially determined to ruin Mr. Caperton against whom he instigated and decided not less than a hundred trespass suits. In every county in the circuit he breathed forth threatenings and slaughter and spread consternation and dismay. He was notoriously licentious in his mode of life and it soon became known that he was also corruptible in the administration of his public office. But his persecution of the ex-rebels won for him the high regard of the state Government and the enthusiastic admiration of the Legislature. The Supreme Court of Appeals at that time consisted of three judges, and the law provided that when any one of the three was absent by reason of sickness, or was in any other way incapacitated from duty in court, a circuit court judge should be called in to take his place. Nat. Harrison made it convenient to attend at many of the sessions of the Court of Appeals and was frequently called upon to sit as one of the judges of that high tribunal, and in that capacity participated in rendering some of its most obnoxious decisions. In January, 1866, Col. Hounshell, who had been in the Confederate service, went to the seat of Government, at Wheeling, where the Legislature was sitting, with formal charges against Harrison, accusing him of disloyalty to the Government of the United States, maladministration of the duties of his office and perjury. The charges were presented in the House of Delegates on the 7th day of February by Col. Dan. Johnson, a gallant and honorably discharged soldier of the Federal Army, who offered a joint resolution for the impeachment of the accused in the manner provided by law. So indignant were the members that an ex-Confederate officer, who did not come "with bated breath and whispering humbleness," should be permitted thus " to rail upon the Lord's anointed," that Col. Hounshell, who was in the lobby of the House, was violently assaulted by three or four stalwart individuals and forcibly and unceremoniously kicked, beaten and thrust down the stairs and out of the building. On the next day the following resolutions, here copied verbatim, were offered and adopted under a suspension of the rules:
"Resolved, That this House deplores the disorderly scene that occurred in the hall immediately after adjournment last evening, growing out of the introduction of a paper which was deemed by this House a malicious attempt to publicly slander one of the circuit judges of the state, aggravated by the haughty bearing and insulting language of the author of said Glanderous paper towards the members of this House while in the hall. The sergeant-at-arms is instructed to be vigilant in the preservation of the peace, and ejection of all improper persons from this hall in future."
"Resolved, That no farther action be taken in the subject of the said slanderous paper, but to return it to its author, if to be found, through the sergeant-at-arms."
The first attempt at the impeachment of Harrison having thus tragi-comically failed, he went back to his circuit with some new revenges to gratify and more firmly seated than before. He owned an interest in a little weekly newspaper called the Monroe Republican, and he required all legal advertisements from all the counties in his circuit to be published in that paper. He advised litigants to employ a particular attorney whom he favored and from whom he received a share of the fees. He appointed a receiver of the circuit courts of Greenbrier and Monroe, and allowed him a commission of two per cent. more than was allowed by law, and this two per cent. was believed to be the perquisite of the judge. He borrowed for his own use, funds officially held by the receiver, and gave no security. He signed in his official capacity, the petition of an ex-Confederate to the President of the United States for a pardon, and received three hundred dollars therefor. He took jurisdiction of cases in which he was himself a party interested. He advised the defendant in an action brought by a plaintiff whom he hated, to bring the case on for trial at a particular time promising to have a special jury summoned for the purpose of finding a verdict for the defendant.
All this and more. He was openly intemperate and lewd; wherever he went he sought the society of prostitutes, and at nearly every place of holding court he had a negro mistress.
By the grace of the registrars he was elected in 1868, his term of appointment having expired, and he then began to punish those who had opposed his election. A clause of the Constitution provided that, "No person except citizens entitled to vote, shall be elected or appointed to any state, county or municipal office." Accordingly Judge Harrison directed " Old Scratch " to erase from the list of registered voters the names of Joel McPherson, clerk of the circuit court of Greenbrier County; Wallace Robinson, sheriff of said county; G. A. Lewis, recorder, and Alexander Walker, a supervisor of one of the townships. He then declared the offices of these several gentlemen vacant, and proceeded to make appointments to suit himself. The outraged officials immediately appealed to the Supreme Court and were reinstated, but for some time after the order of the Supreme Court had been sent down, Harrison refused to recognize the officers thus restored.
Alexander Walker who was a Northern man, a Republican, and a member of the bar, at last resolved to aid in a new attempt for the impeachment of the judge. He was collecting some evidence in relation to the matter when, on the 12th of January, 1870, Harrison came into court with a rule already prepared summoning Walker to show cause why he should not be disbarred for unprofessional conduct, in soliciting affidavits concerning the judge's personal habits. Walker accepted service of the rule, and asked that he be allowed twenty-four hours in which to procure an affidavit to be used in his defense. The judge would listen to no delay and directed the clerk to enter at once an order which had been prepared beforehand, disbarring Alexander Walker, and revoking his license as an attorney. Walker went to the Supreme Court of Appeals and the order was reversed and annulled.
By this time the Republican party in the state found Judge Nat. Harrison a pretty heavy load to carry. He had become a stench in the nostrils of decent people all over the state and his infamies could be no longer winked at or brazenly ignored. In the Legislature of 1870, the storm burst. Articles of impeachment with specifications, only a few of which have been referred to above, were adopted in both Houses, and the judge was summoned to appear for trial on the 25th of February. Harrison was in Wheeling, where the Legislature was in session, when the joint resolution was adopted, but he fled from the state in order to escape service of notice until it would be too late for the Legislature to proceed with the trial at that session. He was followed to Pittsburgh, where he was found in a brothel; the notice was served upon him then and there; he returned to Wheeling the next day; handed to the Governor his resignation of the office of Judge of the Seventh Judicial Circuit, which was, perhaps too promptly, accepted; and his name appears no more in the history of West Virginia. A few years later he died in great destitution at Denver, Colorado, and his body was buried by the charity of the members of the bar.
At the fall election in 1870, the Democrats elected the state officers and a majority of the members of each branch of the Legislature. A constitutional convention was called, which met in 1872, and the new constitution framed by it was ratified by the people, in October of that year. The era of proscription having passed, an era of prosperity began.