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Chapter 10: Confiscation and the Courts: Jurisdiction and Procedures
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Confiscation and the Courts: Jurisdiction and Procedures D espite the expectations of both confiscation’s supporters and opponents , the Supreme Court liberally interpreted the First and Second Confiscation Acts. It granted Congress the benefit of the doubt on jurisdictional and procedural questions and accepted the constitutional argument for confiscation, thereby permitting the acts as broad a scope as their advocates could have desired. In fact, the Court often suggested that confiscation , particularly under the second act, could have been more extensive and that property taken from pardoned rebels need not have been returned. These interpretations failed to increase the effectiveness of the two acts, however, since all but a few were decided after President Andrew Johnson and Attorney General James Speed had ceased enforcing the acts. Nonetheless, the Court’s interpretation of the acts was significant. It undercut President Abraham Lincoln ’s anxiety about duration of forfeiture and Attorney General Edward Bates’s worries about procedures. Perhaps more important, the Court’s discussion of the acts, particularly the second, illustrated the sloppy craftsmanship of the measures themselves, the problems that local officials faced when implementing them, and the radicals’ inattention to their enforcement and failure to rescind the joint resolution governing duration. Judicial acceptance of confiscation suggested that a broader and longer confiscation of Southern property would have been acceptable had congressional Republicans been less timid and had pushed the Lincoln administration on these issues.1 The first major question before the courts involving confiscation was whether Congress meant to limit proceedings to admiralty, the term mentioned in both acts, or if the legislation was meant to be under common law, thus extending to a broader range of property and involving jury trials.2 In , a Tennessee resident claimed that the First Confiscation Act did not reach his real estate, because Congress had stipulated the property liable to confiscation ‘‘to be lawful subject of prize and capture wherever found,’’ meaning only personal property found at sea. The Circuit Court of Tennessee disagreed in United States v. Republican Banner Officers ().3 It ruled that the ‘‘mere technical sense’’ of the words ‘‘prize and capture’’ should not limit the act because Congress obviously sought to confiscate more than property at sea. Instead, Congress ’s intention ‘‘must have been to deter persons from using and employing’’ PAGE 155 ................. 11265$ CH10 03-11-05 11:39:37 PS T C W C A all manner of property to aid the rebellion, including real estate. The court concluded that Congress intended ‘‘prize and capture’’ to have the same meaning as ‘‘seizure’’ in the Second Confiscation Act, demonstrating its willingness to accept the broad aims of both acts.4 A year later, in Mrs. Alexander’s Cotton (),5 the Supreme Court expanded the definition of property liable to military capture and confiscation. According to Chief Justice Salmon P. Chase, who as secretary of the treasury was familiar with issues surrounding both confiscated and abandoned property, Mrs. Alexander’s seventy-two bales of cotton constituted enemy property, even if she was not a supporter of the rebellion. (Chase, however, had made it clear he had no doubt Mrs. Alexander had been ‘‘a rebel enemy’’ when the second act passed.) He wrote that all people of a region in insurrection against the United States—her plantation was near Alexandria, Louisiana—had to be considered enemies until that region returned to its former allegiance. Chase cited Justice Robert Grier’s opinion in the Prize Cases ()6 to uphold the right of confiscation during a state of war and concluded that the cotton, as enemies’ property, ‘‘was liable to capture and confiscation by the adverse party.’’ Of equal importance, the chief justice dismissed Mrs. Alexander’s claim that the seizure of her property by naval forces on land denied the court jurisdiction. Instead, Chase cited both the first and second acts to justify the seizure. The ‘‘capture was justified by legislation,’’ Chase said, ‘‘as well as by public policy’’ as expressed in the two laws.7 Thus, even before the war ended the Court embraced a generous view of jurisdiction under the confiscation acts. The Supreme Court reaffirmed this broad interpretation of jurisdiction after the war in several decisions concerned with jurisdiction under the first and second act. In Union Insurance Company v. United States ()8 the appellant argued that the Circuit Court of Louisiana had no jurisdiction over the first act because the proceedings were in admiralty, thus held without a jury, when the property seized was landed real...