The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War (review)

The engaging centerpiece of Hamilton's book is a dissection of debates in the 37th Congress about the Second Confiscation Act. In Hamilton's persuasive account, the debates turned on issues of higher legality; the legal cases reflected competing republican and liberal ideologies of private property in relation to the state; and the denouement, including judicial responses to the resulting legislation, marks a telling step toward the triumph of the liberal ideology.

On what constitutional or other lawful basis could the U.S. Congress provide for legislative confiscations of property owned by supporters of the Confederacy—meaning seizures by officials of assets apparently owned by legislatively defined classes of persons, unattended by individualized determinations of liability in judicial proceedings meeting normal due-process standards? For Southerners supporting parallel legislation in the Confederacy, the answer was simple: The international law of war (on a contested but supportable view) left property at risk of seizure during wartime by an enemy government into whose power it happened to fall.

For Northerners, though, the question was complicated by the prevailing Unionist doctrine of the legal nullity of secession and the consequent status of adherents to the Confederacy as insurrectionary U.S. citizens, not enemy aliens. On liberal readings of the Due Process and Attainder clauses, forfeiture of citizen property could be justified only as punishment for crime, requiring individualized trials and convictions, and, in any event (so went the argument), it could not neglect the claims of presumptively innocent heirs to land. Congressional radicals wishing to avoid these barriers to vigorous confiscation found support in Revolutionary-era precedents basing legislative confiscations on a republican view of property rights, oddly commingled with feudal ideas about tenures conditioned on fealty to the lord. This view perceived property rights as conditionally granted by the commonwealth for the commonwealth's purposes and, accordingly, as legislatively modifiable to safeguard justice and the public weal (which, for Civil War Congressional radicals, included not only demotivation and impedance of rebellion but also freeing slaves and acquiring southern lands for distribution to freedmen).

Hamilton deftly suggests how the republican/liberal ideological polarity in the debates relates to others in the history of American constitutional ideas, such as formalist versus antiformalist views of the Constitution's cogency as law. He is silent, however, on one major conceptual axis, American federalism. The Revolutionary precedents invoked by the radicals were confiscations by state governments, not the Congresses of those days. The prevailing view today is that property relations in the United States are the business of state, not federal, law. It would be interesting to know whether, and how, the radicals felt comfortable moving from the state-law Revolutionary precedents to the idea that Congress is the locus of republican guardianship, or common will, in the field of property (might "republicanism" in this case have been merging into a more modern idea of a higher, implicit constitutional law of necessity, of which we have recently heard a good deal?).

Hamilton's is mainly a work in the history of American political ideas, presented through a close and alert reading of a major Congressional debate and, in a separate chapter, of a set of judicial opinions (treated with high technical facility) dealing with the constitutionality and application of the resulting Confiscation Act. Hamilton includes an interesting but digressive, more sociohistorical chapter about the workings of the Confederacy's Sequestration Act, based on courthouse archives.