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

By Daniel W. Hamilton | Go to book overview

Conclusion: The Limits of Sovereignty

In histories of the Civil War, the confiscation acts are frequently referred to in passing, dealt with briskly, and included if at all seemingly out of deference to the fact that the Congress spent so many months debating the issue. Because the acts did not much work, they have appeared to be a dead end. Civil War narratives relating sweeping change during the Civil War run aground on the shoals of the ineffective confiscation acts. Yet sequestration and confiscation present an opportunity to explore the way competing property ideologies were tested and utilized in the midst of what became a total war. In particular, the confiscation debates were a significant episode in a century-long shift in the conception of the Constitution from a near-perfect machine for the distribution of federal power toward its late nineteenth-century role as the ultimate protector of the natural rights of individual property.1

As Jack Rakove and others have shown, the early American republic was not accustomed to resorting to delineated individual rights. Americans talked endlessly of rights, but “rights did not pertain to individuals alone, nor did they come neatly bundled.”2 Individuals had rights, as did communities, corporations, and legislatures. “Rights” was a word, Daniel Rodgers tells us, of “quicksilver fluidity” and alternatively referred to inalienable liberties, to legislative power, or to the accustomed use of wood or water, with countless variations in between.3

The passage of a Bill of Rights by the first Congress did not quickly usher in a new reliance on individual constitutional rights to restrain the federal government. The Constitution did not need a bill of rights because, the Federalists argued, “every power not expressly delegated to the general government was reserved in the people's hands.”4 In this line of thought, government was best restrained by the careful distribution of

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