The Limits of Sovereignty

During the Civil War, both the Union Congress, in the First and Second Confiscation Acts, and the Confederate Congress, in the Sequestration Act, put in place sweeping confiscation programs designed to seize the private property of enemy citizens on a massive scale. This book compares property confiscation in the Union and the Confederacy. It examines congressional debates, the social impact of confiscation legislation, and the interpretation of confiscation doctrine by the Supreme Court. I contend that the Civil War experiment with confiscation helped cause an important shift in American property ideology and constitutional law by accelerating the rise of liberal conceptions of individual property rights, forcing reconsideration of the legal status of slave property, and narrowing the scope of sovereign power over property. In the North, an ideological debate that could have taken decades to unfold incrementally, case by case, was instead, under the pressure of war, compressed into a little more than a year. Congress ultimately passed confiscation legislation that reflected deep ideological divisions and made widespread confiscation nearly impossible. As a consequence, after the confiscation debates, the failure of land re-distribution in the South, of the possibility of 40 acres and a mule, was all but inevitable. In the South, the resort to confiscation required the exercise of sweeping centralized power over individual property, a move that were almost totally at odds with the dominant trend in Southern legal and constitutional thinking before the war. Yet the new Confederacy, because it was locked in a struggle for its existence, drew heavily on property ideology inherited from the American Revolution. The ideological importance of confiscation legislation drew the Supreme Court into the fray after the war. While the constitutionality of confiscation was upheld, its scope was narrowed to near-irrelevance. The Court eviscerated what remained of Northern confiscation, and legally erased Southern confiscation. Confiscation persisted in the Supreme Court for decades after the war, and Justice Stephen Field took the lead in articulating an emerging liberal consensus that legislative confiscation was illegitimate and unconstitutional. Attention to the confiscation debates presents an opportunity to explore the way competing property ideologies were tested and utilized in the midst of what became a total war. Civil War confiscation reveals a relatively rare moment in American history when competing principles of property ideology were subject to fierce, explicit, and open debate, not primarily between academics, but among legislators, and with the property of millions at stake. Legislators in both sections, thrown back upon first principles, were forced to articulate their vision of property, and just as importantly, to attempt to turn that vision into law and into policy. Even as war raged, the making of confiscation policy prompted fundamental questions about the basis of private property, the nature of the Constitution, and the relationship of individual property rights to the needs of the state. Together, Civil War sequestration and confiscation belong within the context of landmark American debates over property. They were legislative programs that tested, and ultimately changed, the extent of sovereign power over property at mid-century.