Daniel W. Hamilton locates that change in the crucible of the Civil War. In the early days of the war, Congress passed the First and Second Confiscation Acts, authorizing the Union to seize private property in the rebellious states of the Confederacy, and the Confederate Congress responded with the broader Sequestration Act. The competing acts fueled a fierce, sustained debate among legislators and lawyers about the principles underlying alternative ideas of private property and state power, a debate which by 1870 was increasingly dominated by today’s view of more limited government power.
Through its exploration of this little-studied consequence of the debates over confiscation during the Civil War, The Limits of Sovereignty will be essential to an understanding of the place of private property in American law and legal history.
Daniel W. Hamilton is assistant professor at Chicago-Kent College of Law.
Early on, two primary factions argued against trying the case. Influential northerners dreaded the prospect of a public trial, fearing it would reopen the wounds of the war and make a martyr of Davis. Conversely, white southerners pointed to the treatment and prosecution of Davis as vindictive on the part of the federal government. Moreover, they maintained, the right to secede from the Union remained within the bounds of the law, effectively linking the treason charge against Davis with the constitutionality of secession.
While Icenhauer-Ramirez agrees that politics played a role in the case, he suggests that focusing exclusively on that aspect obscures the importance of the participants. In the United States of America v. Jefferson Davis, preeminent lawyers represented both parties. According to Icenhauer-Ramirez, Lucius H. Chandler, the local prosecuting attorney, lacked the skill and temperament necessary to put the case on a footing that would lead to trial. In addition, Supreme Court Chief Justice Salmon P. Chase had little desire to preside over the divisive case and intentionally stymied the prosecution’s efforts. The deft analysis in Treason on Trial illustrates how complications caused by Chandler and Chase led to a three-year delay and, eventually, to the dismissal of the case in 1868, when President Andrew Johnson granted blanket amnesty to those who participated in the armed rebellion.