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 SEVEN
Civil War Confiscation in the
Reconstruction Supreme Court

Attention to the treatment of confiscation in the federal courts, particularly the Supreme Court, after the Civil War reveals a much longer, richer life span for confiscation than historians have generally recognized. Confiscation lived on as an important issue for decades after the war and was not entirely put to rest until the twentieth century. Once confiscation ceased to be politically viable, it did not simply vanish. Instead, it remained a fixture in American property law for fifty years. Even as the executive branch ceased to confiscate property, the federal courts were beginning to consider the vital legal and constitutional issues raised by confiscation. The longevity of confiscation prompts reconsideration of the law's ultimate significance and takes the focus off President Andrew Johnson as the near-exclusive dismantler of the legislation.

The confused confiscation legislation passed during the war by the Thirty-seventh Congress drew the Supreme Court into the fray after the war and allowed Justice Stephen Field, in a series of important decisions, to incorporate a liberal conception of property into the constitutional interpretation of confiscation legislation. After the war, the Court eviscerated what remained of Northern confiscation and legally erased Southern confiscation. The Court, and Field in particular, used confiscation legislation as a key component in articulating an emerging liberal consensus on property confiscation that saw legislative confiscation as illegitimate and unconstitutional. Confiscation lived on in the Court for a quarter

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