FLASHBACK: Due Process? For Confederates?
In November, 1863, with the Civil War still in full swing, the Legislature enacted a new law providing for the forfeiture of property “belonging to...enemies” of the State of West Virginia. “Enemies” included anyone who aided “in any invasion of this state or hostile action against the same.” The forfeiture process was begun by filing a motion with the circuit court requesting the appointment of a commissioner to take possession of, collect, and administer the property in question. The person alleged to be an enemy of the state was entitled to notice “by publication or otherwise.”
In this case, Alexander Campbell, Jr., a Brooke County native, was alleged to be an officer in the Confederate army who participated in hostile action against the State of West Virginia. The circuit court promptly granted the motion and appointed a commissioner. Campbell appealed, alleging that the forfeiture law was unconstitutional.
In arguments before the Supreme Court, the Attorney General argued strenuously in support of the law. Rejecting the argument that any notice other than publication was constitutionally required, he asked rhetorically: “When men turn upon the government for the purpose of destroying it, should they not forfeit all claims to the immunities and privileges of it?” Campbell drew his arguments directly from the due process clause: “This proceeding is had without any process,” he complained, “contrary to the principles of the common law of any and all governments.”
Justice James H. Brown wrote the Supreme Court’s decision. Because this was a “war measure,” he began, “it should not be loosely interpreted nor improvidently executed.” The Court stopped short of declaring the law to the unconstitutional. However, the Court insisted that forfeiture cases must follow the same notice provisions that applied generally in all other cases. Publication notice was proper if, and only if, notice could not be served personally on the person whose property was being forfeited.
Here, then, we see our Supreme Court embracing due process. History tells us that due process protections are often weakened in wartime. The exigencies of war often trump our most cherished liberties. But even with war looming in the background, the Supreme Court refused to bend to the Legislature’s enactments or the Executive’s arguments. Yes, even Confederates were entitled to due process of law!
Campbell v. State, 1 W.Va. 165 (1865)
