The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War / Edition 1

by Daniel W. Hamilton

Overview

Americans take for granted that government does not have the right to permanently seize private property without just compensation. Yet for much of American history, such a view constituted the weaker side of an ongoing argument about government sovereignty and individual rights. What brought about this drastic shift in legal and political thought?

Daniel W. Hamilton locates that change in the crucible of the Civil War. In the early days of the war, Congress passed the First and Second Confiscation Acts, authorizing the Union to seize private property in the rebellious states of the Confederacy, and the Confederate Congress responded with the broader Sequestration Act. The competing acts fueled a fierce, sustained debate among legislators and lawyers about the principles underlying alternative ideas of private property and state power, a debate which by 1870 was increasingly dominated by today’s view of more limited government power.

Through its exploration of this little-studied consequence of the debates over confiscation during the Civil War, The Limits of Sovereignty will be essential to an understanding of the place of private property in American law and legal history.

Product Details

ISBN-13:	9780226314822
Publisher:	University of Chicago Press
Publication date:	02/01/2007
Edition description:	New Edition
Pages:	200
Product dimensions:	6.00(w) x 9.00(h) x 1.00(d)

About the Author

Daniel W. Hamilton is assistant professor at Chicago-Kent College of Law.

Read an Excerpt

The Limits of Sovereignty Property Confiscation in the Union and the Confederacy during the Civil War
By DANIEL W. HAMILTON
THE UNIVERSITY OF CHICAGO PRESS Copyright © 2007 The University of Chicago
All right reserved.
ISBN: 978-0-226-31482-2



Chapter One Legislative Property Confiscation before the Civil War

Prior to the 1860s, Americans had one other great experience with property confiscation, during the American Revolution. At the outbreak of the Revolution, states began, in explicitly republican terms, to confiscate land and personal property belonging to Tory loyalists, both those who had fled to England and its dominions and those who remained in the colonies. This precedent was crucial to the consideration of confiscation during the Civil War and needs to be explored in some detail.

Property within republican thought is not "owned" in an absolute sense but is provisionally granted as a "bundle of rights," or a set of malleable prohibitions and entitlements determined entirely within the political process. Property rights thus are relational and are functions of social policy rather than the revelation of reason, natural law, or divine will.

In this way, republican theories of property share an odd relationship with premodern assumptions. Republicanism rejected, of course, the legitimacy of obligations to the ruling lord or monarch and replaced it with an ideological commitment to the ultimate authority of the state. Confiscation has its roots in the medieval law of forfeiture and the conception that land is not owned but held contingent upon continuing loyalty. In the shift from authoritarian monarchical power to state power, the power to seize individual property when the needs of the state demanded it, or when the obligation to the sovereign was broken, carried over. The inextricable link between the legitimate possession of property and loyalty was maintained. A commitment to state power trumped all others, and preserved the right of the state to seize disloyal property forever, without compensation and with the corruption of blood.

Revolutionary confiscation would stand as a model for vigorous property confiscation by the legislatures. During the Revolution, private property had been permanently seized by state legislatures without compensation, for public benefit and as punishment for disloyalty. Civil War congressmen would have to grapple with the question of whether this was still legal and constitutional some eighty-five years later. Moreover, confiscation, along with other Revolutionary challenges to private property, had helped produce reforms in the 1780s in the areas of eminent domain and treason law. These reforms would shape, to a large extent, the later debate over confiscation, in particular the just compensation clause of the Fifth Amendment and the constitutional ban on bills of attainder. Finally, Revolutionary confiscation was an important element in the ideologies of the competing coalitions during the Civil War: some legislators drew upon and others rejected strains of Revolutionary property ideology when making their arguments about Civil War confiscation.

In November 1777, the Continental Congress recommended that the states seize, and sell at auction, the real and personal property of Tory loyalists and use the proceeds to finance the war. This sale of confiscated property provided revenue and also served to assert the legitimacy of the new United States. As Linda K. Kerber has argued, "Confiscation was one among the many ways in which patriots defined theirs as an authentically new social order." Confiscation had begun in some states as early as 1775, and, while it faced some domestic opposition, the sanction of Congress "greatly hastened" the process of confiscation. During the Revolution, "every state without exception declared Tory lands to be forfeited or at least subject to forfeiture." Both during the war and after, "vast amounts of land were forfeited." In New York over three million dollars' worth of property was acquired, and many large estates were sold off in pieces. Property seized in Massachusetts from loyalists amounted, in one estimate, "to about eight percent of all the towns' area and eleven percent of all the value of all Boston realty." In Georgia, the legislature passed two separate confiscation bills, in 1778 and 1782, naming over three hundred persons guilty of treason and confiscating all their property.

These confiscation acts show the prominence in the Revolutionary era of a republican conception of property that subordinated individual rights to the social and political needs of the polity, a conception within which "individuals held their property at the sufferance of the state." The language of the acts was suffused with the republican idea that the legal protection of property was not based on natural law but derived from government and was contingent on continuing allegiance to the political community. The Massachusetts Revolutionary confiscation act, for example, provided that, "whereas every government hath a right to command the personal services of all its members whenever the exigencies of the state shall require it," it followed that "no member thereof can then withdraw himself of the jurisdiction of the government ... without justly incurring the forfeiture of all his property, rights and liberties, holden under and derived from the constitution of government." The Virginia confiscation act declared that "vicious citizens who side with tyranny and oppression ... should at least hazard their property and not enjoy the labors and dangers of those whose destruction they wished." Congress in its 1777 resolution had already said that loyalists had "forfeited the right to protection."

This republican conception of property extended to regular uncompensated confiscation by the state of private land for public purposes. While alternative ideas of just compensation represented an increasingly potent counter-tradition, "the principle that the state necessarily owes compensation when it takes private property was not generally accepted in either colonial or revolutionary America." Colonial legislatures frequently authorized the seizure of unimproved land, and timber on the land, for the construction of roads. Some colonies took the title to land away from those who had failed to develop their property and transferred it others. Of the first post-Revolutionary state constitutions, only Vermont and Massachusetts had just compensation provisions.

To be sure, states did recognize "a large sphere within which they did not challenge private property rights." Not only did Massachusetts and Vermont provide for compensation for private land confiscated by the state, but other legislatures, with the exception of Virginia, generally did recognize a right to compensation for improved land. Nevertheless, the idea that private owners must in principle be compensated for property confiscated for public use was not dominant in the Revolutionary era, and uncompensated takings of private land were a regular occurrence. There remained a powerful strain within American thought that individual property rights were often trumped by governmental efforts to foster the public interest, an outlook forcefully expressed by the iconic Ben Franklin: "Private property ... is a creature of society, and is subject to the calls of that society whenever its necessities shall require it, even to its last farthing."

Franklin's idea of property found new expression in the republican fervor unleashed by the Revolution itself. In particular, the argument that widespread ownership of property was essential to an independent citizenry was increasingly reflected in property law reforms designed to promote the greater distribution of property. Primogeniture was abandoned in favor of partible inheritance. At the same time, the "fee tail"-a complicated legal maneuver that gave testators extensive control over the ability of heirs to alienate land-was abolished. The Congress set aside vast amounts of federal land in the Ohio Valley for settlement. State legislatures began to take tentative steps toward the redistribution of property and lessening the power of creditors. Apart from confiscating loyalist land, a step with some redistributive consequences, legislatures passed stay laws and issued paper money to benefit those in debt. Thomas Jefferson went so far as to propose that the Virginia Constitution guarantee fifty acres to "every person of full age neither owning nor having owned 50 acres of land."

The distribution of land proposed by Jefferson was not, however, adopted, and republican property reforms led to a predictable counterattack by the advocates of strict notions of private property, drawing on an alternative tradition that maintained the sanctity of individual private property rights. The republican zeal of the Revolutionary era generated increasing anxiety and led to a new articulation by Federalists of the fundamental rights of private property, most notably at the constitutional convention, where "one of the main objectives of the delegates who gathered in Philadelphia was to shield property rights from what they regarded as manic and irresponsible state legislatures."

* * *

Bills of attainder did not survive the Constitution. Yet the ideology they represented was not destroyed. Like uncompensated takings, bills of attainder had a long history and represented the extent to which a legislature considered itself, and not only courts, entitled to police allegiance to the political community. During the Revolutionary War these bills were utilized widely for the confiscation of loyalist property (when banishment or some lesser penalty than death was the prescribed punishment, such an act was called a bill of pains and penalties). States passed bills of attainder and bills of pains and penalties on a wide scale: New York, for example, attained more than 1,000 people, Pennsylvania nearly 700, and Massachusetts 260. Since property was a social creation of the state, and for many in the Revolutionary generation a prerequisite to participation in public life, the legislature had the legitimate authority to seize property when one's allegiance to the state was violently broken.

Attainder reflected not only republican ideals of property but also the vestiges of premodern conceptions of landholding and treason that put loyalty to the sovereign at the center of legitimate dominion over property. Within the medieval English land law, property ownership was ultimately derived from the sovereign, or held "of the king," who could, to greater and lesser degrees, set the terms that limited the claims of an individual possessor. Land was not "owned" in the modern sense of the word, but was instead legitimately possessed in a complicated system of tenures. Tracts of land were "held of" a superior lord, who in turn "held of" a superior lord, in a chain that ended in the king. Superiors in the chain owed security to inferiors, and inferiors owed loyalty to superiors, ritualized in a service of homage upon taking possession of land. The legitimate possession of land was tied to a series of mutual obligations, flowing originally from grants made by the sovereign.

It is of course a generalization to describe a property regime that spanned several hundred years. In recent years, the idea of feudalism as a coherent, pervasive property regime has come increasingly into question. Feudalism is now a hotly contested term, and I have no wish to enter that contest. Instead, I refer to a medieval English system of landed relationships based on reciprocal obligations and enforced in the central courts as a more or less uniform regime of land tenures. The idea that reciprocal obligation between a landholder and a sovereign served as the basis for legitimate landholding-that property was held on good behavior-remained deeply embedded not only in the tenures but also in notions of felony and treason.

In a system of landholding based on continuing fealty, disloyalty to the sovereign, or treason, meant the permanent loss of one's property. Treason, "the first major offence to be defined by statute," in 1351 during the reign of Edward III, was in essence defined as the attempted usurpation of the king's authority. The Treason Act punished the offender's breaking of the bond of loyalty with the ultimate sovereign. It advanced the idea that a subject had a higher loyalty to the king than to the duty owed to an intermediate lord. The king by 1351 was the highest sovereign in the chain, and an attempt to kill him or plot against his life was recognized at law as a crime against the ultimate sovereign power. Unlike a felony such as murder or robbery, treason represented an attack on the common sovereign power. It was "the most serious offence known to English law," for which the state reserved its worst punishments, including the loss of all of a traitor's land, which was forfeited to the crown.

A conviction of treason by a court or an attainder of treason by a legislature brought with it death to the offender, the forfeiture of all his property to the crown, and corruption of blood. The extension of punishment to the offender's family, or a "corruption of blood," reflected a view that the right to transmit property to heirs was not a natural right but a socially created one-one that was lost when the offender broke off allegiance. Joseph Story, though critical of attainder, asserted that the rationale for corruption of blood was to punish those who had severed their allegiance to the polity: "By committing treason the party has broken his original bond of allegiance, and forfeited his social rights. Among those social rights, that of transmitting property to others is deemed one of the chief and most valuable."

The American Revolution took place more than four hundred years after the reign of Edward III. In its rejection of royal authority, Revolutionary property ideology was in fundamental ways a rejection of medieval thought. Premodern conceptions of property had been transformed into a system in which land was to a great extent freely alienable. Yet the idea of loyalty to the sovereign as the underlying basis for the legitimate possession of land was not erased by constitutional bans on attainder. The interconnection of property, loyalty, and sovereignty showed remarkable resilience within the law and continued to echo across the confiscation debates.

Chapter Two Radical Property Confiscation in the Thirty-Seventh Congress

The Revolutionary precedent of zealous confiscation had met its inverse in Civil War paralysis. Abraham Lincoln called the Thirty-seventh Congress into special session on July 4, 1861. On August 6, the last day of this short first session, the Congress passed, and Lincoln soon signed, the First Confiscation Act. Enacted in the immediate wake of the first battle of Bull Run, this hurriedly passed law did not break much new ground. It was essentially a restatement of internationally recognized laws of war and authorized the seizure of any property, including slave property, used by the Confederacy to directly aid the war effort.

When the second session of the Thirty-seventh Congress convened in December 1861, public pressure was mounting in the North for another, more vigorous confiscation bill. Senator Lyman Trumbull, a Republican from Illinois and the chairman of the Judiciary Committee, quickly emerged as the most important figure on confiscation. Two days after the Thirty-seventh Congress reassembled for its second session on December 2, 1861, Trumbull took the floor to introduce S 78, a new confiscation bill entitled "For the confiscation of the property of rebels, and giving freedom to the persons they hold in slavery." This bill envisioned the seizure of all rebel property, whether used directly to support the war, or owned by a rebel a thousand miles away from any battlefield.

Legitimacy and the Rule of Law

The "rule of law," like property ideology, was not monolithic. It contained different variations, some supporting the restrained exercise of sovereign power and others supporting vigorous federal action. Its common commitment was a dedication to a "higher" set of principles, operating above the interests of political actors, not entirely synonymous with political will. A hallmark of this commitment to higher law was a widespread devotion in antebellum America, bordering on the religious, to the Constitution. As discussed in the introduction, the Constitution was not, before the Civil War, seen primarily as the great protector of individual rights, and it did not gain its legitimating power solely from its status as the chief embodiment of popular sovereignty. Sanford Levenson has persuasively argued that American reverence for the Constitution constituted a quasi-religious faith, divided between a conception of the document as a "guarantor of justice" and as "an instrument of sovereign will."

Of these two conceptions, the former was originally the more dominant. Edward Corwin reminds us that "the attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents ... a comparatively late outgrowth of American constitutional theory." Much of the cultural and legal force of the Constitution was due to its "embodiment of an essential and unchanging justice." Both conceptions had considerable legitimating power in antebellum America, and both operated as a set of higher principles, divorced from partisan, transient political struggle and placing substantive limits on ordinary legislation.

(Continues...)

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Table of Contents

Acknowledgements
 
Introduction

CHAPTER 1. Legislative Property Confiscation Before the War

CHAPTER 2. Radical Property Confiscation in the Thirty-Seventh Congress

CHAPTER 3. The Conservative Assault on Confiscation

CHAPTER 4. The Moderate Coup

CHAPTER 5. The Confederate Sequestration Act

CHAPTER 6. The Ordeal of Sequestration

CHAPTER 7. Civil War Confiscation in the Reconstruction Supreme Court

Conclusion: The Limits of Sovereignty

Notes

Index

Editorial Reviews

"[The author] situates Civil War property confiscation as among the salient events that pushed liberal constitutionalism to unchallenged dominance and republicanism into total eclipse. Hamilton's closely argued book successfully links the Civil War with long-term trends in American history."

Law and History Review - Stephen A. Siegel

"A concise, well-written, and well argued account. . . . The insights of this fine book can be applied throughout the field of economic history."

Enterprise & Society - Franklin Noll

In The Limits of Sovereignty, Daniel Hamilton uses the mostly ignored debates over confiscation to explore the tensions between individual property rights and community rights throughout the nineteenth century. This is a wonderfully engaging and thoughtful book—one that I have learned much from.”—Alfred L. Brophy, University of Alabama Law School

Alfred L. Brophy

Making legal history interesting and comprehensible to nonlawyers is often a difficult task. Hamilton performs it skillfully. . . . A valuable contribution to nineteenth-century legal history."

The Historian - Joseph A. Ramney

Hamilton has crafted an important advancement in the legal history of the era of the United States Civil War. . . . [The book] ought to find a place on the shelf of every serious scholar of the era, regardless of field."

Thomas C. Mackeyn Historical Review

Diverse combatants presently debate limiting government’s eminent domain power over private property. The debaters, and all of the readers of core Civil War–Reconstruction histories, should exploit Hamilton’s lucid inquiry into Lincoln-era property confiscation policies.”

Harold Hyman

Clearly written and richly detailed, The Limits of Sovereignty demonstrates the crucial role debates over confiscation during the Civil War played in the construction of modern constitutional liberalism. This fascinating study will be of interest to specialists in American constitutional, legal, and political development, as well as to general readers wishing to learn about a vital, but often unexplored, episode of constitutional policy making during the Civil War.”—Mark A. Graber, University of Maryland

Mark A. Graber

"In a focused and detailed analysis of confiscation by Union and Confederacy governments, Professor Daniel Hamilton reveals the underexplored effects of this dynamic epoch on constitutional understandings of property. . . . The Limits of Sovereignty is an accessible and compact book that offers valuable insight into the Civil War era and will be appealing to anyone interested in the story of property under the Constitution."

Harvard Law Review

A well written concise consideration of an important feature of the Civil War—first, the confiscation of enemy property by the Union sovereignty, and second, that of the so-called Confederacy during the Civil War. . . . An excellent introduction into one of the lesser known but signmificant legal aspects of the war."

Law & Politics Book Review - Robert M. Spector

The Limits of Sovereignty makes an important contribution to the legal and constitutional history of the Civil War and Reconstruction. Hamilton shows how debates over property confiscation in the Union, the Confederacy and in the Supreme Court raised fundamental questions of constitutional rights and civil liberties. This well-researched and well-written book provides new insights into how ideas of property and state power were debated and defined during the Civil War, with consequences that reach from Reconstruction to the present day.”— Robert J. Kaczorowski, Fordham University School of Law

Robert J. Kaczorowski

"I suspect a good many of us are going to have to revise a number of lectures to incorporate this material, which is not only scholarly but a fun read. Whatever you make of the general thesis, one I find largely convincing, The Limits of Sovereignty clearly demonstrates why students of American constitutional development must understand the confiscation debates of the Civil War and does so with polish and intelligence."

Balkinization - Mark Graber

Hamilton has crafted an important advancement in the legal history of the era of the United States Civil War. . . . [The book] ought to find a place on the shelf of every serious scholar of the era, regardless of field."

American Historical Review - Thomas C. Mackey

"[The author] situates Civil War property confiscation as among the salient events that pushed liberal constitutionalism to unchallenged dominance and republicanism into total eclipse. Hamilton's closely argued book successfully links the Civil War with long-term trends in American history."

— Stephen A. Siegel

Law and History Review

Making legal history interesting and comprehensible to nonlawyers is often a difficult task. Hamilton performs it skillfully. . . . A valuable contribution to nineteenth-century legal history."

— Joseph A. Ramney

The Historian

“Hamilton has crafted an important advancement in the legal history of the era of the United States Civil War. . . . [The book] ought to find a place on the shelf of every serious scholar of the era, regardless of field."

— Thomas C. Mackey

American Historical Review

"A concise, well-written, and well argued account. . . . The insights of this fine book can be applied throughout the field of economic history."

— Franklin Noll

Enterprise & Society

“A well written concise consideration of an important feature of the Civil War—first, the confiscation of enemy property by the Union sovereignty, and second, that of the so-called Confederacy during the Civil War. . . . An excellent introduction into one of the lesser known but signmificant legal aspects of the war."

— Robert M. Spector

Law & Politics Book Review

"I suspect a good many of us are going to have to revise a number of lectures to incorporate this material, which is not only scholarly but a fun read. Whatever you make of the general thesis, one I find largely convincing, The Limits of Sovereignty clearly demonstrates why students of American constitutional development must understand the confiscation debates of the Civil War and does so with polish and intelligence."

— Mark Graber

Balkinization