by Daniel W. Hamilton. Chicago and London: University of Chicago Press, 2007. 200pp. Cloth. $39.00. ISBN: 9780226314822.
Reviewed by Robert M. Spector, Department of History and Political Science, Worcester State College. Email: rspector [at] worcester.edu.
THE LIMITS OF SOVEREIGNTY, by Daniel W. Hamilton, is a well-written concise consideration of an important feature of the Civil War—first, the confiscation of enemy property by the Union sovereignty, and second, that of the so-called Confederacy during the Civil War.
When the war began, Union confiscation of properties belonging to those who were admitted rebels took place in the Thirty-Seventh Congress through the First Confiscation Act of August, 1861, and the Second in July 1862. The First “authorized the federal government to seize the property of those participating directly in the rebellion.” The Second “provided for the permanent uncompensated seizure of all the real and personal property of anyone taking up arms against the government, anyone aiding the rebellion directly, or offering aid or comfort for the rebellion.” The precedent for these acts lay in English Medieval law, where the lords held their lands in loyalty to the king, and lost their lands based on their failure to recognize and practice the incidences required by feudal procedure. Later, on the rise of Republicanism, as Parliament took the place of the king, the State was substituted for the king. In a word, the sovereign state became the owner of all land and property, and the possessor continued to hold not title but seisin in property. And this was what was practiced during the American Revolution, when the colonial Congress and/or former colonies passed measures confiscating the properties of Tories and those opposing the Revolution.
Yet, considering that legislative Bills of Attainder, or corruption of the blood, in early modern times had been declared contrary to the English legal field, among other issues, factions rose in the Thirty-Seventh Congress over the constitutional validity of these Confiscation Acts. For one, there were the Radicals, led by such persons as Lyman Trumbull of Illinois, who “argued for the legitimacy of confiscation.” For them, loyalty to the sovereign was “paramount, and membership in a political community contingent” (p.24). A second faction, conservative, led by such men as Orville Browning of Illinois and Jacob Collamer of Vermont, opposed confiscation, on the theory that a person did not hold property based on loyalty to the sovereign but on the Lockean principal of individual title or a form of fee simple. Joseph Story in his COMMENTARIES ON THE CONSTITUTION had attacked the confiscation acts of the Revolution as Bills of Attainder, contrary to modern enlightened Anglo-American law. Still, a third faction, opposing confiscation, lay [*583] in the moderates, such as John Sherman of Ohio, who insisted that confiscation could only occur judicially and not legislatively; without a trial, such Acts of Congress were unconstitutional. As far as just compensation by the sovereign went, although Trumbull was a radical he felt that where the judiciary of the Union was still operating, a judicial trial for the determinations of both aid and comfort to the enemy and just compensation were obligatory. Further, although most of the Democrats in the Thirty-Seventh Congress had withdrawn (Virginia and Tennessee still had membership), the majority Republican Party, hardly united except on the absolute agreement that slave property had to be confiscated without compensation, held fractions present throughout these groups. Lincoln, himself, had been supportive of the Conservative view and was not enthusiastic about enforcing the Confiscation Acts on the view that the Confederacy was not legitimately out of the Union but somehow only out of joint with it, and that confiscation was only constitutional when such properties were taken over in military areas for military purposes.
Once the war was over, confiscation of non-slave property was recognized either only during the lifetime of the former rebel, the property had been sold to a third person, or amnesty had wiped away the confiscation. Extinction of slavery without compensation was, of course unconstitutional, and required the 1865 Thirteenth Amendment. Individual ownership of property had replaced the feudal concept.
During the War, as a result of the First Union Confiscation Act, the Confederacy, considering itself a sovereign government, passed a Sequestration Act which had no ideological problems. Where the government viewed the Union as an enemy alien belligerent, all property owned by the citizens of the United States within the Confederacy was subject to seizure, with the result that by the end of the war in 1865, millions of dollars belonging to Union citizens within the borders of the Confederacy had been taken. Of course, however, once the war was over, whatever the Confederacy had done in terms of sequestration was ruled invalid.
Hamilton has written a relatively brief book, and he might have constructed a broader context for his analysis by taking a closer look at Medieval English or international law. But he undoubtedly did not intend to go further than what he has written. His citations of Supreme Court cases are fairly numerous, and the explanations and analyses clear. His book is not intended for a general history of the United States, nor even for any strong understanding of the causes of that war, but it is an excellent introduction into one of the lesser known but significant legal aspects of the war. And it clarifies one important change in the general acceptance of property ownership, especially for students primarily interested in the legal implications of the Civil War. Well recommended.
© Copyright 2007 by the author, Robert M. Spector.