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Article Excerpt
On October 11, 1861, the Richmond Enquirer reported that a Confederate court had confiscated Monticello. Weeks before, the Confederate Congress had passed the Sequestration Act, authorizing the seizure of Northern property in direct retaliation for the First Confiscation Act. A captain in the U.S. Navy, Uriah P. Levy of Pennsylvania, owned Thomas Jefferson's former estate. Two Virginians, George Carr and Joel Wheeler of Charlottesville, managed Monticello as Levy's agents. As a U.S. citizen, Levy had been designated an "alien enemy." Consequently, under the terms of the Act, all of his property located within the borders of the Confederacy was subject to permanent, uncompensated seizure and sale for the benefit of Confederate citizens who had lost property to the Union. (1)
The Confederate courts charged with administration of the law quickly seized the Monticello estate, "comprising 360 acres of land ... assessed at $20 per acre," along with "a house and other improvements assessed at $2,500." In addition to Monticello, the courts confiscated other property Levy owned in Albemarle County, including 960 acres of land as well as "ten slaves, 8 horses, sixteen head of cattle, seventy-eight sheep, thirty hogs and a lot of household and kitchen furniture." (2) In its speed and efficiency, the confiscation of Monticello was typical. Rarely, however, did the Confederate government confiscate Northern property at so little cost to its own citizens.
In the South there was near ideological consensus on the legal basis for seizing Union property. The United States was an enemy belligerent whose property was, at international law, subject to permanent confiscation during war. (3) Through the resort to international law, the Confederacy was able not only to assert its sovereignty but also to craft a far more rigorous and effective Act much more quickly than its Northern counterpart. U.S. citizens were, at Confederate law, foreigners, and were not accorded the protections of domestic Confederate constitutional law. U.S. citizens were not traitors, and in fact owed no legal allegiance to the Confederate States of America. (4) As a result, all of the agonizing self-scrutiny over the constitutional rights of the enemy that so dominated the Northern confiscation debates was mostly absent in the South.
The classification of the Union as a foreign country had important institutional consequences. The whole legal apparatus for confiscation in the North--individual hearings determining the loyalty of property owners--was not conceptually applicable within the Confederacy. This made for a more vigorous confiscation regime. Property was confiscated by Confederate courts simply if it could be shown that such property belonged to an alien enemy. By 1865 the Confederate judiciary had seized and sold millions of dollars worth of Northern property located all over the South. (5)
In discussing sequestration, we must draw a line between legislative and military confiscation. There is an important literature on the treatment of civilian property by the Northern and Southern military during the Civil War. (6) This work focuses on the treatment of property by armies on the move, and the attempt on the part of government to regulate the treatment of civilians. The taking of "contraband" is governed by the laws of war, a largely self-contained set of doctrines and principles based in domestic and international law, which balances the strategic needs of the military with a desire to protect noncombatants. This is distinct from confiscation pursued by a legislature, not to help win a battle or campaign, but as policy. Military confiscation is recognized as the seizure and use, and even destruction, of another's property as part of military strategy. (7) Under nineteenth-century law, the seizure of property by the military was normally temporary. Title to the property did not transfer from its owner, and the authority of the military to seize property ended with the restoration of peace. Legislative confiscation, in contrast, is designed to legally transfer property away from its owner, and it can take place thousands of miles away from any army or battlefield. Property need never be physically occupied in order for title to vest in the government.
Under the Sequestration Act, extraordinary legal demands were put upon ordinary Confederate citizens by the courts. The very independence of the Confederacy also limited the reach of Southern property seizures. Northern confiscation was designed to seize disloyal property and took place as the Union acquired more and more Confederate territory. Sequestration, however, could be enforced only within the boundaries of the new Confederate nation. The Confederacy made no claim to dominion over the Union but instead, of course, was fighting to secede. By the laws of war, the Confederate army operating in the United States could impress property for its own use. The Confederate Congress could not, however, make any general claim to foreign property located inside the boundaries of the United States. Belligerent property belonging to U.S. citizens could be confiscated by the legislature only if it was located inside the boundaries of the Confederacy. In some cases, like the confiscation of Monticello, absentee landlords abandoned property, which was quickly seized. In most instances, however, Northern property was in the possession of Confederate citizens, often a family member, or a business partner, or a debtor who owed money to a Northern alien enemy.
The fact that Union property was subject to legislative confiscation only inside the Confederacy put remarkable demands on Southerners and became, in some cases, oppressive. In legal terms, the Sequestration Act reflected a broad assertion of extraordinary constitutional powers on the part of the Confederate government and, in particular, its courts. Families were required to offer up to court officers property belonging to children and siblings living in the North. Lawyers, bankers, brokers, and businesses were made to open their books to reveal any property located in the South belonging to Northern clients or partners. The contents of wills were scrutinized by court officers, who duly seized property that would have passed to Northern heirs. All citizens were required to inform the government of any enemy property of which they were aware, whether in their possession or anyone else's, imposing a clear legal instruction to inform on one's neighbors. Most important, in terms of the sheer amount of money involved, the Sequestration Act made the Confederate government the new creditor for any debt owed by a Confederate citizen to an alien enemy. Those in debt to Northerners now owed money to the Confederacy instead.
In social terms, the implementation of the Sequestration Act was at first embraced, but its implementation increasingly led to divisions and fragmentation within Confederate society. The Sequestration Act was initially praised in the popular press as a just and necessary retaliatory measure. There was widespread fear and anger over the resort to confiscation by the North, and high hopes that sequestration would offset the loss of property to what was depicted as a voracious Union confiscation program. The business community, however, opposed the act as harmful to commerce and devastating to companies and partnerships owned jointly by Northerners and Southerners. Moreover, the difficulties of enforcing confiscation inside the Confederacy became increasingly apparent. In particular, it became more and more difficult, both legally and personally, to determine who was and who was not an "alien enemy." The claim that the United States was a foreign country and its citizens alien enemies was much easier to maintain at law than in fact.
Until recently, it has been nearly axiomatic that the Confederacy was hampered by a devotion to limited central government, ceding too much power to the states, exercising too little power over individual dissenters, and becoming increasingly weak as the war went on. In David Donald's famous formulation, the Confederacy "died of democracy." (8) The work of the Confederate courts, in particular, has been downplayed, with scholarly discussion confined largely to the famous inability of the Confederate Congress to create a Supreme Court, even though one was provided for in the Confederate Constitution. Article III of the Confederate Constitution, taken of course from the substantially similar U.S. Constitution, allowed for the creation of a Supreme Court, yet, because of congressional disputes over the relative power of state and federal courts, a Supreme Court was never established. This has led some historians to minimize, or dismiss entirely, the work of the Confederate judiciary. (9) As a consequence, some assert, the federal judiciary had a marginal role, while state courts had the central role. (10) Guided by these traditional interpretations, we would predict that a confiscation program designed by the Confederate Congress and administered by the Confederate judiciary was doomed to failure.
Yet Southern confiscation succeeded. During the war a remarkably demanding property confiscation regime was imposed on a mostly willing citizenry by the Confederate courts. The relatively sudden reassertion of broad power over individual property in the Confederacy was at odds with dominant Southern constitutional thought before the Civil War. During the 1787 constitutional convention, and in the decades after, Southern slaveholders had sought, largely successfully, to protect slave property from extensive regulation by the central government, arguing for the primacy of state sovereignty, and against the threat to individual property rights. (11) As a consequence, Southern constitutional thought before the Civil War was marked largely by a sustained legal fight to protect slave property from federal regulation and the elaboration of constitutional rights to property. Yet with sequestration, a nearly authoritarian regime was imposed by the new Confederate government as antebellum legal precedent and ideological commitments gave way to the exigent needs of a fledgling state. (12)
The Confederacy's break with the United States was manifested in the quick creation of governmental institutions. (13) The Confederate States of America "was to be an instant nation, an accomplished fact to invite allegiance from Southerners, recognition from Europe, and discourage interference from the United States." (14) A new Congress, a new Constitution a new president, and a new cabinet--all were put in place with striking speed. On February 4, 1861, the Provisional Confederate Congress, a unicameral body, met in the state capitol building in Montgomery, Alabama. On February 8, the Provisional Congress unanimously approved a provisional Constitution and on February 9 elected a president and a vice president, both of whom traveled to Montgomery for the inauguration on February 18, three weeks before Lincoln's inauguration in March. (15) The breakneck pace meant that, by the time of the first major battle of the Civil War in July, the Confederacy had been in existence for almost six months.
The first Confederate steps toward confiscation reflected a balance of caution and necessity. On February 25, President Jefferson Davis appointed three ambassadors to represent the Confederacy in Washington and to negotiate the possession of all U.S. property located in the Confederacy, including forts, arsenals, and land. (16) U.S. Secretary of State Seward refused to recognize these commissioners, reflecting the Lincoln administration's position that the United States remained legally intact. Christopher Memminger, the Confederate secretary of the treasury was desperate for the hard currency needed for foreign trade and payments on government bonds. In early March, he ordered the seizure of U.S. assets located in Southern customs houses, mints, and, later, post offices, ultimately confiscating roughly some $1.6 million in specie. (17) The Confederate Congress kept the Tariff of 1857 in effect and customs officials in office. While customs houses were initially in the hands of Southern state governments, Memminger soon transferred control to the Confederacy. (18)
The firing on Fort Sumter produced more definitive steps. On April 17, in response to Lincoln's order calling up seventy-five thousand troops, Davis issued a proclamation authorizing applications for letters of marque and reprisal. He declared that Lincoln was subverting the independence of the Confederacy and "subjecting the free people thereof to the dominion of a foreign power." (19)
On May 6, the Confederate Congress formally declared war on the United States, ordering that ships belonging to U.S. citizens had thirty days to leave port. Ships "in the service of the government of the United States" docked at Confederate ports were subject to immediate seizure. (20) The new government also took initial steps to seize Union property located inside the Confederacy. On May 21, the Confederate Congress prohibited Southern debtors from paying off Northern creditors during the war, requiring payments be made to the Confederate Treasury instead. In return, debtors received an interest-bearing certificate that was "redeemable at the close of the war and the restoration of peace." (21) At this point, the law provided that the Confederate government would recognize Northern debts and pay Northern creditors. (22) The May 21 law thus envisioned the ultimate satisfaction of debt to Northern creditors, and was an application of the doctrine that in war, commerce between enemies is suspended. (23) It was nevertheless viewed by many in the North purely as an act of confiscation.
The Battle of Bull Run on July 21 led to more dramatic steps on both sides. On August 6, Lincoln signed into law the First Confiscation Act, passed in part as a retaliatory measure to the Confederate law. (24) While this act was not much enforced, it nevertheless set off a great deal of fear in the South and led to broad steps against U.S. citizens and their property. On August 8, the Confederate Congress declared U.S. citizens "alien enemies" and ordered them deported from the Confederacy. The Congress required "every male citizen of the United States, of the age of fourteen years and upwards, now within the Confederate States, and adhering to the United States and acknowledging the authority of the same ... to depart from the Confederate States within forty days." The act exempted from deportation those U.S. citizens resident in the Confederacy who took an oath recognizing the authority of the Confederate government and who declared their intention to become Confederate citizens." (25)
On August 30, in explicit retaliation to the First Confiscation Act, the Confederate Congress passed the Sequestration Act, a much more effective confiscation law than any passed in the Union. As of that date, the May 21 law was superseded, but it nevertheless remained important as a form of official notice to break off all commercial relationships with U.S. citizens, and the Sequestration Act was made retroactive to May 21. In July, D. F. Kenner of Louisiana first referred a sequestration bill to the Judiciary Committee. (26) Two weeks later, on August 6, R. H. Smith of Alabama, who emerged as the main congressional sponsor of sequestration, reported the bill out of the committee. With minimal amendment, the...
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