Confiscation: Constitutional Crossroads

CONFISCATION: Constitutional Crossroads Patricia M. L. Lucie The Congressional debates on confiscation were more useful than the legislation they produced. Very little property was confiscated under the acts of August 6, 1861 and July 17, 1862 and the emancipation clauses were quickly made redundant by the Emancipation Proclamation and the Thirteenth Amendment. Yet the debates were a seminar in the problems of Reconstruction. Of the lessons learned none was to prove so important as that of how to utilize the federal courts to enforce new-found constitutional rights. Later, as the result of much practice, Congress developed more expertise in matching rights with remedies. The federal courts became the nuts and bolts of Reconstruction legislation.1 When the Thirty-Seventh Congress met however, it was under the handicap of inexperience. Only a few revenue laws existed to illuminate the technical problems of guaranteeing to individuals the protection of federal law in possibly hostile state environments. Indeed it was the lack of such precedents which had brought some of the constitutional calamities which faced them now. On August 6, 1861, Congress passed the first Confiscation Act. Although it contained court procedures which became the center of hot controversy in the later act of July 17, 1862, these went almost unnoticed for the moment. This might have been because of the heavy demands on that summer's special session or because the act was fairly limited in scope. But by early 1862, when Congress began to debate confiscation again, the Republicans quickly discovered how divisive the issue was to be. The 1862 act was the outcome of scores of proposals, six months of debate, and the deliberations of two Judiciary Committees, two Select Committees and a Committee of Conference between the two Houses. It narrowly escaped Lincoln's veto. Much of the conflict revolved around the proposed role of the federal courts. The courts figured in all the competing proposals but to such different purpose as to amount to a parting of the ways ' Especially important work on this has been done by Stanley Kutler, Judicial Power and Reconstruction Politics (1968), Harold M. Hyman, A More Perfect Union (1973) and William M. Wiecek 'The Reconstruction of Federal Judicial Power", 13 American Journal of Legal History (1969). 307 308CIVIL WAR HISTORY in constitutional interpretation, one way pointing ahead to a vital, self-preserving Constitution and the other back to the more familiar and limited model. Unfortunately stalemate ensued for the moment. The act was clumsily put together with scissors and paste, taking bits and pieces from incompatible alternatives. As a result the courts played three quite different roles. In the first five clauses, transplanted from the Senate's treason bill, they were given jurisdiction in what was no more than an extension of the ordinary criminal law to cover an extraordinary situation. The second section of the act was about confiscation. In it the courts were to play a more innovatory and controversial role as an agency of the war power under the Constitution. Different again, and more ambiguous , was the function designed for the courts in the emancipation sections. Here the interesting possibility arises that Congress intended the courts to play a still more novel and important role, that of providing the freed slave with a federal guarantee of his freedom. The differences in origin, intention and effect require that the sections be approached separately. The conservative view of confiscation emanated from a conservative view of the Constitution. An important minority of Republican senators including Orville Browning, Edgar Cowan and Jacob Collamer argued that in time of emergency the only permissible confiscations of land and slaves must be temporary and directly related to military necessity. Hence discretion in the matter was for the Executive as commander-in-chief of the armed forces. Any legislative attempt to confiscate property would be severely limited by the constitutional rights of those to whom it applied. Congress could not simply take property without due process or compensation . As a punishment for crime the restrictions were no less severe. If the crime was treason the guilt of the accused had to be judicially ascertained in the manner prescribed by the Constitution. That done, the convicted traitor faced...