Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1878-03-19
TRESPASs SUITS.

Directly after the war many actions OF
trespass were instituted, by loyal men,
against Southern soldiers for acts committed
in obedience to Confederate authority. For
example, French, a Confederate provost
Marshall, acting under orders from Rich>
mond, arrested White, Union man hostile
to the Southern cause. In 1866, White
brought suit for false imprisonment French
offered plea, setting up as his defence
that he acted under orders, and that the ar.
rest was an act justified by the usages of
civilized warfare. The judge refused to allow
this plea, and judgment was rendered for
$1,000. This is fair sample OF many SIM
liar cases.
The constitution of 1872 endeavored to
afford relief by declaring, emo citizen shall
be liable. (nor shall his property be sold to
satisfy any Judgment rendered,) because of
any act done, according to the usages of civ
ilized warfare, in the prosecution of the latc
war;" and the Legislature, to cffectuate this
clause, authorized the Circuit Courts, CATER
notice &c to set aside these judgments and
award new trials.
But, until recently, the profession were of
opinion that this legislation was nugatory,
because in conflict with the constitution of
the United States; viz: mo State shall i'm
pair the obligation of a contract" ''No
State shall deprive any person of life, liberty
or property, without due process of ldw." 1t
was insisted, l. That the judgment was a
contract, and the provision impaired that
contract. 2. That the judgment was prop
e7ty, and the legislation deprived White of
his property, i. e. his Judgment, without due
process of law. These positions were cons
sidered impregnable, and many proceedings
to set aside judgments were abandoned.
We have before US brief, dated February
1878, by A. c, Snyder, of Greenbrier. sus-
tanning the constitutionality of the West Vir-
ginia Law. This argument. in point of abili-
ty, has not been excellcd since the war; it
places the author in the very front rank Of
the profession in this country and it is cers
tain to revolutionizo the preconceived views
of the Bar upon this subject. The question
is of intense interest and its collateral bear
ings of immense practical importance. We
roughly note some of the points in this brief.
They are novel, but strik ing and very strong:
LIST. A judgment rendered for test, is
not contract. a judgment in q suit for
SANDER lacks the essentials of contract
2nd. The provision which iuhibits Stale
from depriving person of property, without
due process of law, being the 18th Amend
ment, was adopted after the date of the
judgment.
srd. The phrase "duo process of Law" in
eludes legislative proceedings.
4th. a judgment is not property in the
loyal sense of the torn it is not right TO
recorer property. Property must be some>
thing visible and tangible.
9Th. The plea offered by French was a good
defense. aud the refusal of the judge to
allow it, was palpable disregard of the law
there is limit to judicial responsibility,
and judgment obtained under such cir
cumstances is within the corrective power of
Court of Equity, and may be enjoined. The
judgment was rendered, not upon mistake
as to the law, but in plain disregard of the
law.