The Confederacy on Trial: The Piracy and Sequestration Cases of 1861 (review)

Because of the difficulty of learning law and history, both highly specialized disciplines, the legal and constitutional history of the Civil War era have not flourished since Harold M. Hyman paved the way for the subjects more than thirty years ago in A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York, 1969). Therefore Weitz's engagingly written book makes a particularly welcome addition to the crowded Civil War shelf.

Weitz discusses, on the one hand, two trials of Confederate sailors for piracy held in the North in 1861 and, on the other hand, the attempts of South Carolina lawyers in the same year to challenge the requirements of the Confederacy's Sequestration Act, which allowed the Confederate government to seize the property of enemy aliens. Weitz has brought these trials together because they hinged on the status of the Confederacy as a nation-state with a central government of coercive power. Weitz's method is to rely on rare printed and manuscript sources for the trials and to describe the arguments in them at considerable length, offering analysis along the way. He gives us flesh-and-blood lawyers and judges as well as clear explanations of legal and constitutional issues. "People and their stories are what distinguish constitutional history from the study of constitutional law," Weitz says.

In the North the trials dealt with the legal status of Confederate sailors who captured Union commerce at sea: Were they pirates or prisoners of war? In the end, the decisions of the courts did not matter, and the Lincoln administration finally decided to treat the sailors as prisoners of war. The sequestration cases tried in Charleston dealt with difficult issues, involving the status of debt and lawyer–client privilege. The Confederate judge, Andrew G. Magrath, sided uncompromisingly with the Confederate government.

Weitz recognizes the importance of political-party affiliation in the mid-nineteenth century, noting the role of politics in the Northern cases (the Confederacy had no political parties), a reality too often slighted in constitutional and legal history. But he might have placed even more emphasis on partisan motivation. The lawyers seem less the heroes of civil liberty when seen as partisans. George Wharton, for example, a Philadelphia lawyer and Democrat who defended some of the Confederate sailors in 1861, a year later became a leading critic of the Lincoln administration's suspension of the privilege of the writ of habeas corpus. But civil liberty really was not on trial in the piracy cases, which asked whether the Confederacy could be considered a nation in international law. What tied the issues together was Wharton's Democratic hatred for the Republican administration, which tried (at first) to hang the pirates in 1861 and sweepingly suspended the writ of habeas corpus in 1862.

Attention to neglected legal and constitutional matters should not obscure the large policy questions involved. In a sense, the decision not to hang the sailors as pirates (coupled with the decision to blockade the expansive Confederate coast) allowed Confederate commerce raiders to drive the Union's merchant marine from the seas. But these are minor criticisms of a solid book that is bound to make others look into the legal and constitutional history of the Civil War era.