Test Oaths, Belligerent Rights, and Confederate Money: Civil War Lawsuits Before the West Virginia Supreme Court of Appeals

Charles J. Faulkner, in 1866, successfully challenged a requirement that West Virginia lawyers take a loyalty oath, which had been enacted by the legislature in 1863. His success set off a firestorm of Radical Republican laws to close loopholes in measures designed to punish former Rebels and to keep them from gaining control of state government. Faulkner's appeal, Ex Parte Faulkner, was one of the first to challenge West Virginia's proscriptive laws before the West Virginia Supreme Court of Appeals. As former Rebels sought relief from lower-court decisions, it was followed by many others. The various proscriptive acts impacted the most basic constitutional rights of citizens—property (including the ability to make a living), voting, equal protection of the law, and the right of appeal. Lawsuits challenging the acts, as well as others which arose from actions caused by the Civil War, flooded the courts. Perhaps these legal actions are a footnote to the broader historical themes of the war—slavery, preservation of the Union, right to secede, states' rights, etc. However, an examination of litigation resulting from the war provides another view of the turmoil, anguish, hardship, and anger generated by the conflict.

Restrictive legislation was not unique to West Virginia and was common in the other "border states."¹ Though West Virginia was not one of the occupied states in the former Confederacy, historians have generally included West Virginia's experience in adjusting to the political struggles of a new state as part of Reconstruction. Historian Eric Foner contends that Reconstruction in West Virginia began in 1861 when the Restored Government of Virginia was created² by members of what John A. Williams has termed the "political and social elite" of western Virginia.³ That is, the new government immediately instituted measures that were designed to restrict the rights of, and even impose financial and criminal punishments on, those who had joined the Southern cause. In his essay on Reconstruction in West Virginia, historian Randall S. Gooden noted that in 1863 West Virginia's new leaders, because of previous experience in the Restored Government of Virginia, were "already well practiced at internal security,"⁴ and quickly enacted a new loyalty oath designed to protect the new state. Regardless of terminology, the war experience and the adjustment to it defined West Virginia's early history.

Lawsuits to recover damages from Confederate soldiers and sympathizers were filed in West Virginia courts long before the Civil War ended in April 1865. After the war, disputes over the legality of actions by county officials in Confederate-controlled territory, belligerents' rights, the value of Confederate money, and other issues entered the courts and continued to be contested for another decade. Damage suits against Confederate troops, partisan rangers, guerrillas, or Southern sympathizers were filed and prosecuted by Union civilians who had suffered from unlawful imprisonment, confiscation, or destruction of property. Southerners, who had suffered equally at the hands of Union sympathizers, were unable to seek redress due to the restrictive measures passed by West Virginia's Republican-dominated legislature to punish former Rebels and to tilt the scales of justice to Union supporters.

Some of the many lawsuits made their way to the West Virginia Supreme Court of Appeals, and it is to that court that we look for details on the circumstances leading to the suits. Appellants who sought relief from what they considered arbitrary circuit court decisions were initially disappointed by the decisions at the Supreme Court. According to historian Milton Gerofsky, one of the first historians to investigate West Virginia's post-Civil War legal climate, in the years immediately after the war the court simply ratified lower court actions based on legislation influenced by Radical Republicans in the West Virginia legislature.⁵ However, the eventual easing of restrictions, the "let up," had an aborted beginning as early as the election of 1865.⁶ The Radicals believed they had covered all bases with a set of legal tools, which included the loyalty oath and voter's test oath. They even allowed lawsuits arising in...