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 FOUR
The Moderate Coup

In between the radical and conservative coalitions was a powerful group of legislators who were torn on the issue of confiscation. These moderates were all Republicans, and most of them, in the end, voted to delay or significantly weaken radical confiscation. The defining role of this coalition in shaping confiscation policy has not received sufficient notice. In leading accounts, the arguments of conservatives, particularly the claim that the fifth amendment and constitutional prohibitions on attainder made legislative confiscation impossible, are treated as settled. Congress, some historians argue, was constitutionally restrained from the start, essentially leaving the treatment of property and slaves up to the president.1 Yet this was precisely the central issue on which the confiscation debates turned and the issue that so badly divided the Republicans in Congress. As Trumbull himself recognized, the most decisive actors in this debate were a group of dissidents inside his own party, one that ultimately wrenched control of the legislation away from him and his allies. The Second Confiscation Act did end up reflecting a largely conservative reading of the Constitution, but that is only because Trumbull and the radicals, for the most part, lost.

By the end of the session, in July 1862, confiscation was the only issue faced by the Thirty-seventh Congress that was controversial enough to divide the Republicans to the point that they could not reach consensus on a coherent bill. Conservatives concerned about the property rights

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