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

By Daniel W. Hamilton | Go to book overview

CHAPTER ONE
Legislative Property Confiscation
before the Civil War

Prior to the 1860s, Americans had one other great experience with property confiscation, during the American Revolution. At the outbreak of the Revolution, states began, in explicitly republican terms, to confiscate land and personal property belonging to Tory loyalists, both those who had fled to England and its dominions and those who remained in the colonies. This precedent was crucial to the consideration of confiscation during the Civil War and needs to be explored in some detail.

Property within republican thought is not “owned” in an absolute sense but is provisionally granted as a “bundle of rights,” or a set of malleable prohibitions and entitlements determined entirely within the political process.1 Property rights thus are relational and are functions of social policy rather than the revelation of reason, natural law, or divine will.

In this way, republican theories of property share an odd relationship with premodern assumptions. Republicanism rejected, of course, the legitimacy of obligations to the ruling lord or monarch and replaced it with an ideological commitment to the ultimate authority of the state. Confiscation has its roots in the medieval law of forfeiture and the conception that land is not owned but held contingent upon continuing loyalty. In the shift from authoritarian monarchical power to state power, the power to seize individual property when the needs of the state demanded it, or when the obligation to the sovereign was broken, carried over. The inextricable link between the legitimate possession of property and loyalty

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