Hamilton on The Confederate Sequestration Act

Daniel Hamilton, Chicago-Kent College of Law, has posted the abstract to an article, The Confederate Sequestration Act, which appeared recently in Civil War History (v. 52, p. 373, 2006). For the article itself, see the journal, or contact Hamilton through his SSRN page. Here's the abstract:

In the South there was near ideological consensus on the legal basis for seizing Union property during the Civil War. The United States was an enemy belligerent whose property was, at international law, subject to permanent confiscation during war. 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 confiscation regime much quicker than their Northern counterparts. U.S. citizens were, at Confederate law, foreigners, and were not due the protections of domestic Confederate constitutional law. U.S. citizens were not traitors or rebels, and in fact owed no legal allegiance to the Confederate States of America. 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. Property was confiscated by Confederate courts simply if it could be shown 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.

Yet the very independence of the Confederacy also limited the reach of Southern property seizure. Northern confiscation was designed to seize disloyal property and took place as the Union acquired more and more Confederate territory. Sequestration, on the other hand, could be enforced only within the boundaries of the new Confederate nation. The Confederacy made no claim to dominion over the Union, but was instead fighting to secede. By the laws of war, the Confederate army operating in the U.S. could impress property for its own use. But the Confederate Congress could not, in contrast, make any general claim to 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.

The fact that Union property was subject to legislative confiscation only inside the Confederacy put remarkable demands upon Southerners, and became, in some cases, oppressive. 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. In this way, 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. Most importantly, 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 any U.S. citizen now owed money to the Confederacy instead.