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

The Limits of Sovereignty is a concise, well written, and well argued account of the shifting relationship between state power and individual property rights during a defining moment in US history. Through its examination of government confiscation in the north and south, the book provides historians with insight into the legal factors contributing to economic and business developments during the Civil War and Reconstruction. Daniel Hamilton argues that the various confiscation acts of the Civil War, especially the Union's Second Confiscation Act, marked a turning point in the nation's view of property rights. He does this over the course of seven chapters, covering legislative property confiscation from the time of the Revolution to reconstruction.

During the Revolution, state legislatures confiscated loyalist property using a republican conception of property ownership as a right granted by the state. Those disloyal to the state lost the right to property, allowing land and goods to be seized by the government. The same idea reappeared some 80 years later as the Thirty-Seventh Congress debated a plan for legislative confiscation of rebel property early in the Civil War.

It is here, in the battle over what would become the Second Confiscation Act, that Hamilton lays out the ideological struggle over property rights and marks the turning point in US law. He portrays the Republican-dominated Congress as being divided three ways on legislative property confiscation. Radicals took their lead from the Revolutionary era and declared that the rebels had forfeited their property rights, allowing for sweeping legislative confiscation. Conservatives saw property as an inherent right that could not be legislated away; confiscation could only occur judicially through a trial for treason. Moderates also believed that confiscation had to occur through the courts, but a treason trial was not necessary. Those subject to confiscation could be determined by Congress. In the end, a weak and largely ineffective act, embodying the moderate viewpoint, was passed and unenthusiastically enforced by the Attorney General.

In sharp contrast to the ideological struggle in the north, Hamilton relates the quick passage of the Confederate Sequestration Act. Viewing the Union as a foreign country and an enemy belligerent rather than a population of fellow citizens, the Confederate Congress simply used international law to justify the seizure of all northern property. The Confederate Act had sweeping powers and was rigorously enforced, leading to an authoritarian regime that invaded privacy and destroyed businesses. Not only did it break bonds of trust and professional relationships between southerners, it also obliterated commerce between the north and south that had previously simply been frozen for the duration of the War.

During reconstruction, the idea of inalienable property rights gained ground. This thought was championed by Justice Stephen Field of the US Supreme Court. Though at first in the minority, his opinions gained ground over time as the Court gutted what was left of the Union Confiscation Act and swept away southern sequestration. By the end of the nineteenth century, legal opinion supported laissez-faire economic theory and the inalienability of property rights.

It is hard to find fault with Hamilton's closely and rigorously argued work. One may argue that the shift from social to natural property rights began much earlier with the Constitution as its writers sought to prevent a repeat of the sweeping confiscations of the Revolution. Yet, one must agree with Hamilton that the issue really did not come to the fore until the Civil War. A more substantial problem is that Hamilton's review of the reconstruction period is a bit cursory and places a lot of the responsibility for the shift to inalienable rights on changing views in the Supreme Court. But, was the Court leading the country in changing the law or simply responding to popular will? This question is left unanswered as Hamilton does not...