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

Hamilton’s study of confiscation policy begins with a brief history of property seizures during the Revolutionary War. Confiscation was then grounded in republican principles under which property was only conditionally possessed, with one of those conditions being loyalty to the political community. Disloyalty could thus immediately extinguish a citizen’s right to possession, and the states, acting in the name of their respective communities, seized and disposed of a citizen’s property with little or nothing in the way of legal formality. Section 9 of Article I of the federal Constitution altered this republican frame by prohibiting bills of attainder, but this prohibition still left open the possibility of seizures under other constitutional clauses, most notably those related to the making of war.

In his legislative histories of the First and Second Confiscations Acts passed by the Union Congress, the author shows how a still-powerful republican tradition and a newly emergent legal doctrine of property as a “natural right” shaped conflict between radical Republicans and more moderate Republicans and conservative Democrats. This legislative struggle between two competing doctrinal ideals produced a confiscation policy that was administratively ambiguous and hamstrung by litigious formalities. The end result was that Union confiscation was a nullity. But, Hamilton contends, both the debates in Congress that attended the confiscation acts and the litigation that accompanied its very limited enforcement both reflected and strengthened the emergent principle that property was a natural right, not a conditional grant from a political community.

The author’s account of the 1861 Confederate Sequestration Act varies from his treatment of the Union experience in two respects. First, he devotes little space to legislative history because, unlike those for the Union, the Confederate primary and secondary sources are much too thin to support much analysis of the ideational conflict between contending perspectives. This analytical choice is consistent with Hamilton’s conclusion that Confederate confiscation policy was much more consensual than that in the North. The second difference is that the Confederate account includes a thick description of the implementation of confiscation in the Western District of Virginia (where records of enforcement happened to survive the war). Analysis of these records allows the author to conclude that the Sequestration Act “met with widespread and painstaking compliance” by Confederate citizens, thus documenting “the deep reservoirs of patriotism tapped by the Confederate government” (113). In general, Confederate confiscation was startlingly consensual, effectively implemented, and resulted in massive property seizures throughout the South while Union policy was deeply conflicted, haphazardly carried out, and transferred almost no wealth from disloyal citizens to the federal government.

The author’s primary contention is that Union confiscation policy both reflected and impelled the increasing prominence of “natural right” conceptions of property in the North. Thus, emerging constitutional scruples with respect to property rights were the ultimate cause of the Union’s failure to confiscate much property. And, for that reason, we should view Union policy within this larger historical trend toward natural rights during the nineteenth century. This reviewer, however, views the Union-Confederate comparison as the most important contribution of this book. In the first place, doctrinal constraints were cast aside by the South in this (as well as many other areas) as the Confederate state was built from the ground up. This revolutionary experience implies that the Union, too, could have cast them aside (as, in fact, it did in many other areas). In addition, the Confederate experience with confiscation comports well with what we now know of Confederate nationalism and state expansion, while Union policy, with its general respect for property and reliance on market arrangements, also seems consistent with recent interpretations. Finally, while postwar adjudication of confiscation policy in the federal courts was effectively integrated into the larger trend toward more “a more liberal conception of property” the author does not convince the reader that those...