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 FOUNDED BY JOHN D. ROCKEFELLER 
 
 THE CONFISCATION OF PROPERTY 
 DURING THE CIVIL WAR 
 
 A DISSERTATION 
 
 SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF 
 ARTS AND LITERATURE 
 
 IN CANDIDACY FOR THE DEGREE OF 
 
 DOCTOR OF PHILOSOPHY 
 DEPARTMENT OF HISTORY 
 
 BY 
 
 JAMES GARFIELD RANDALL 
 
 UNi v Ea 
 
 INDIANAPOLIS : 
 
 MUTUAL PRINTING AND LITHOGRAPHING CO. 
 1913 
 
mber$itp of Ctjtcago 
 
 FOUNDED BY JOHN D. ROCKEFELLER 
 
 THE CONFISCATION OF PROPERTY 
 DURING THE CIVIL WAR 
 
 A DISSERTATION 
 
 SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF 
 ARTS AND LITERATURE 
 
 IN CANDIDACY FOR THE DEGREE OF 
 
 DOCTOR OF PHILOSOPHY 
 
 DEPARTMENT OF HISTORY 
 
 BY 
 
 JAMES GARFIELD RANDALL 
 
 INDIANAPOLIS : 
 
 MUTUAL PRINTING AND LITHOGRAPHING CO. 
 1913 
 
COPYRIGHTJ1913 
 BY 
 
 JAMBS G. RANDALL 
 
PREFACE 
 
 This monograph is intended to present the results and conclu 
 sions of an investigation of the federal policy of confiscation dur 
 ing the Civil War, undertaken as a doctoral dissertation for the 
 Department of History in the University of Chicago. Though the 
 nature of such a study is sufficiently clear without introductory 
 comments, and though its importance may not justify an extended 
 preface, yet a word of explanation may perhaps be in order as to 
 the choice of subject matter and the method pursued in this short 
 volume. The writer has, for the purpose of unity of treatment, 
 excluded various topics which are plainly related to the subject of 
 confiscation during the Civil War. The important, though unde 
 veloped, subject of rebel sequestration, for instance, has been 
 referred to only incidentally as throwing light on the motives for 
 the Union measures of forfeiture. A unique class of "property", 
 namely slaves, is excluded from consideration here, because the 
 study of this topic constitutes a substantial problem in itself, and its 
 connection with the policy of general confiscation was only inci 
 dental. Mere military seizures, pursued in accordance with the 
 general army instructions from Washington, fall outside the scope 
 of the present study, as do also forfeiture for violation of the non- 
 intercourse acts, seizures for evasion of the internal revenue, and 
 the capture and disposition of maritime prizes. These omissions 
 have been necessary in order to preserve the minuteness of subject 
 matter appropriate to monograph treatment. 
 
 The method of presentation pursued throughout the study is 
 to classify the data regarding seizures under general heads accord 
 ing to the principal kinds of situations in which property might 
 be placed, and to present the main problems or lines of policy which 
 the government followed in taking, trying, and restoring property, 
 rather than to explore the details of individual cases, though con 
 siderable material of this sort is in the writer s possession derived 
 from the original court records. More space has intentionally 
 been given to the constitutional and legal phases of the subject, 
 than to economic and social considerations. The writer s justifica 
 tion for this emphasis is the highly important bearing of the confis 
 cation question upon the larger constitutional problems of the 
 
 (Hi) 
 
 270923 
 
IV PREFACE 
 
 Civil War, about which much remains still to be written. The study 
 in its present form represents the results of frequent revisions, 
 which doubtless give a tone of severe condensation, but it is hoped 
 that, whatever graces of style may have been sacrificed, clearness 
 has at least been maintained. 
 
 The sources used are indicated in the section on bibliography 
 and in the footnotes. Besides published documents, statutes, 
 debates, decisions, and records, the writer has had access to such 
 unpublished material as the federal district court records, the files 
 of the Attorney-General s office, and of the Treasury Department, 
 and the captured records of the Confederacy. The author s chief 
 acknowledgments are due to Professor C. H. Van Tyne. of the 
 University of Michigan, with whose valuable help the work was 
 begun as a seminary study, to Professor A. C. McLaughlin, of the 
 University of Chicago, whose suggestions and comments on the first 
 draft of the manuscript have been of the greatest assistance, and 
 to the various officers at Washington to whom application was 
 made for the privilege of examining the archives. Particular 
 acknowledgment in this connection is due to the kindness of the 
 officials of the Miscellaneous Division of the Treasury Depart 
 ment. It should be noted at this point that portions of the disserta 
 tion have been published in the American Historical Review, in 
 the number for October, 1912. 
 
 JAMES G. RANDALL. 
 Salem, Virginia, 
 
 February 19, 1913. 
 
TABLE OF CONTENTS 
 
 I THE LEGISLATIVE POLICY OF CONFISCATION 7 
 
 Introductory Statement Influences tending to the Development 
 of the Confiscation Policy Proceedings in Congress relative to 
 the Confiscation Acts Attitude of President Lincoln. 
 
 II THE PROCESS AND EXTENT OF JUDICIAL CONFISCATION 13 
 
 Method of Executing the Acts Difficulties Encountered by the 
 Law Officers of the Government Instructions of the Attorney- 
 General Measures for Securing Information against Property 
 Statistics and Considerations regarding the Extent of Confisca 
 tion. 
 
 III CONFISCATION AS A BELLIGERENT RIGHT 16 
 
 The Problem Stated Views of Early Authorities on Interna 
 tional Law Decision of the Supreme Court in Miller v. United 
 States. 
 
 IV THE PROBLEM OF REBEL STATUS 19 
 
 Attitude of Congressmen regarding "Rebel" Status The Judi 
 cial Interpretation of the Problem in McVeigh v. United States 
 The Question whether a "Rebel" should have a Hearing in a 
 Federal Court. 
 
 V THE DURATION OF THE FORFEITURE 24 
 
 Extraordinary Decision of Judge Underwood in the Latham 
 Case Opinion of the Supreme Court in Bigelow v. Forrest The 
 Duration of Forfeitures under the Act of 1861. 
 
 VI REVERSIONARY RIGHTS IN CONFISCATED PROPERTY 26 
 
 The Meaning of the Suspended Fee The Decision in Wallach 
 v. Van Riswick Reversal of the Wallach Decision. 
 
 VII THE CONSTITUTIONALITY OF THE CONFISCATION ACTS. . . .29 
 
 Related Decisions of the Supreme Court touching the Funda 
 mental Character of the War in the Prize Cases Constitu 
 tionality upheld in the Miller Case. Opinion of the Dissenting 
 Judges in the Miller Case. 
 
 VIII FORFEITURES UNDER THE DIRECT TAX LEVY 33 
 
 Provisions for Enforcing the Direct Tax in the South Con 
 trast between these Forfeitures and Ordinary Tax Sales The 
 Seizure of Arlington Special Inequalities in the South Carolina 
 Forfeitures. 
 
 IX CAPTURED AND ABANDONED PROPERTY 39 
 
 System Established for collecting Captured Property in the 
 South Difficulties Involved Use of Permits Extent of Opera 
 tions under the Captured Property Act. 
 
 (v) 
 
VI TABLE OF CONTENTS 
 
 X THE ADMINISTRATION OF ABANDONED ESTATES 44 
 
 Method of Controlling Deserted Plantations and Estates- 
 Effects of this Control Difficulties of Management. 
 
 XI THE RESTORATION OF PROPERTY 46 
 
 Restoration of Property judicially Seized Direct Methods of 
 Release Action of the Freedmen s Bureau. 
 
 XII RESTORATIONS BY THE COURT OF CLAIMS 49 
 
 Rules adopted by the Court regarding Restorations Consid 
 erations regarding the Situation of Union Sympathizers in the 
 South Amount of Business handled by the Court of Claims 
 Action of the Supreme Court in the Klein Case concerning the 
 Effect of Pardons The Two-year Limitation for the Prosecution 
 of Suits before the Court of Claims Various Recent Reports and 
 Proposals regarding these Claims Erroneous Views concerning 
 the "Captured Property Fund". 
 
 BIBLIOGRAPHY 56 
 
 INDEX 68 
 
 TABLE OF CASES.. ..71 
 
I. THE LEGISLATIVE POLICY OF CONFISCATION 
 
 THE annals of the Civil War furnish many instances of the use 
 of extreme methods in crippling an enemy. To those who approach 
 the study of this period after an interval of a half century certain 
 of the measures employed on both sides seem to be clearly outside 
 the limits prescribed in civilized warfare, while other measures 
 appear to occupy the borderland between what is forbidden and 
 what is allowed. To the latter class belong the acts by which the 
 Union government confiscated the private property of those who 
 adhered to the Confederate cause. ^The employment of a similar 
 measure by one of the great nations today would be generally con 
 demned, and grave doubts were raised at the time as to the justice 
 of such a policy. } 
 
 Our concern in the succeeding pages will be to see how the 
 confiscation policy developed after a long and trying Congressional 
 struggle, to observe the extent of friction and annoyance caused 
 by the enforcement of the acts, and to examine the problems of 
 legal interpretation with which the judges of the period labored. 
 Besides the Confiscation Acts proper we shall take into view vari 
 ous forfeitures in which, under other names and forms, essentially 
 similar principles with reference to the treatment of property were 
 applied. In the administration of the direct tax in the South, for 
 instance, a form of forfeiture was adopted which amounted, virtu 
 ally, to confiscation. The same was true of the collection of cap 
 tured cotton by the treasury officials, and the administration of 
 abandoned estates which fell into Union possession. These forms 
 of seizure will claim our attention then, as representing virtual 
 confiscation. Our inquiry extends also to the final disposition of 
 the property, as well as its original forfeiture, and this involves 
 a study of the various methods of restoration which were adopted 
 after the war. 
 
 To trace the policy of confiscation to its origin would perhaps be 
 impossible since it arose from widely scattered sources, but the 
 earliest official suggestion looking to the forfeiture of "rebel" 
 property seems to have been that of Secretary of the Treasury 
 
 (7) 
 
8 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 Chase, who, in 1861, : before the matter came up in Congress, urged 
 the financial advantages of confiscation. A formidable array of 
 petitions received in Congress from loyal citizens in various parts 
 of the North and even of the South during the year 1861-1862 
 indicates that the subject had attracted a lively attention throughout 
 the country. 2 But a factor of far more influence was the action of 
 the Confederate government in sequestering northern debts. A Con 
 federate statute of May 21, 1861, forbade the payment of debts due 
 to northern individuals or corporations, authorizing their payment 
 into the Confederate treasury, and an act of August 30 provided 
 for the sequestration of the property of "aliens", by which term 
 was meant all those adhering to the Union cause. 3 In view of these 
 acts it was urged in Congress that, aside from the general question 
 of the justice of confiscation, a sweeping measure of forfeiture had 
 practically been forced upon the Union government by the action 
 of the enemy. 
 
 The first confiscation law, a measure of limited scope, applying 
 only to property (including slaves) actually employed in the aid of 
 insurrection, was introduced in the first session of the Thirty- 
 Seventh Congress in the summer of 1861. 4 It was urged by such 
 radical leadership as that of Thaddeus Stevens of Pennsylvania, 5 
 considered with as much deliberation as the crowded business of 
 this short session would allow, and became a law on August 6. So 
 far as the pure principle of confiscation was concerned, these debates 
 were unimportant. The absorption of Congress in more pressing 
 matters, and the introduction of the amendment regarding slaves 
 prevented a full discussion of the constitutional and legal merits of 
 the confiscation question. Indeed it was only in the House of Rep 
 resentatives, and there but briefly, that the real issue of confiscation 
 was debated at all. We must look therefore to the next session of 
 
 1 Finance Report, 1861, pp. 12-13. 
 
 2 During the month from April 1 to May 1, 1862, the following petitions 
 regarding confiscation were received in the House : from Citizens of Wisconsin 
 (House Journal, 37 Cong., 2 sess., p. 494) ; Citizens of Marion County, Indiana, 
 p. 499 ; Citizens of Ohio, p. 567 ; Citizens of Springfield, Ohio, p. 620 ; of Warren 
 County, Ohio, p. 624 ; of Hamilton County, Ohio, p. 634 ; of Cincinnati, Ohio, p. 
 634. See also Senate Journal, 37 Cong., 2 sess., pp. 90-692, passim. 
 
 8 Statutes at Large, Provisional Government of the Confederate States of 
 America, p. 201. 
 
 4 July 15, 1861. Cong. Globe, 37 Cong., 1 sess., p. 120. For the final statute 
 see Stat. at Large, XII. 319. 
 
 6 Cong. Globe, 37 Cong., 1 sess., p. 414. 
 
THE LEGISLATIVE POLICY OF CONFISCATION 
 
 the Thirty-Seventh Congress for a full treatment of the difficult 
 points involved. 
 
 It requires laborious application to follow the second confisca 
 tion measure along its tortuous course through the long session of 
 the Thirty-Seventh Congress. The subject was under frequent con 
 sideration during the whole of this session from December, 1861, 
 to the following July. On the opening day, December 2, Senator 
 Lyman Trumbull of Illinois, a radical Republican, gave notice of 
 his intention to introduce "a bill for the confiscation of the property 
 of rebels and giving freedom to the persons they hold in slavery" ; 6 
 on the 5th he presented his bill with brief arguments in its support ; 7 
 later as chairman of the Committee on Judiciary he redrafted the 
 measure, 8 and it was around this nucleus that legislative confiscation 
 developed. According to Trumbull s bill, the property of all persons 
 out of reach of ordinary process of law who were found in arms 
 against the United States or giving aid or comfort to the rebellion, 
 was to be forfeited, the seizures to be carried out by such officers, 
 military or civil, as the President should designate for the purpose. 
 There were no enumerated classes, the liability to forfeiture being 
 based simply upon participation in the rebellion. The bill in this 
 stage differed widely from the measure which was finally enacted, 
 but the debates are none the less instructive, since most of those who 
 spoke dealt with the general question rather than with details. 
 
 In both houses the supporters of confiscation were Republicans 
 of the more northern states, while its opponents were men of the 
 border states and northern Democrats. The advocates of confisca 
 tion joined in urging the necessity of a measure to punish the 
 "rebels" ; stress was laid on the importance of crippling the finan 
 cial resources of the Confederacy, at the same time adding to those 
 of the Union, and it was urged that in a struggle so gigantic the 
 Union government should exercise the supreme power of self- 
 defense. On constitutional and legal questions, however, there was 
 no such harmony of opinion. To raise such points as the war power 
 of Congress, the status of the "rebels", the legal character of the 
 Civil \\~ar, the restrictions of the attainder clause of the Constitu 
 tion, the belligerent rights as against the municipal power of Con- 
 
 *Ibid., 2 sess., p. 1. 
 T Ibid., p. 18. 
 "Ibid., p. 942. 
 
10 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 gress, was to reveal a deplorable confusion of logic, and a jarring 
 of opinions even among those who voted together. United in their 
 notion as to the practical result sought, the supporters of confisca 
 tion, it would seem, had as many different views regarding the 
 constitutional justification of their measure as there were individual 
 speakers. Among the opponents of confiscation, inconsistencies and 
 contradictions were no less frequent. Some of the speakers regarded 
 the measure as too extreme ; others denounced its unconstitutionality ; 
 others spoke for a policy of clemency or argued the inexpediency of 
 the project. 
 
 As the discussion proceeded the possibility of securing a plan 
 upon which all could agree became fainter. While the question 
 would not down, each time of its recurrence seemed to present new 
 difficulties. Motions to substitute radically different measures for 
 the bill in hand, motions to postpone, motions to refer, and motions 
 to amend, were continually being pushed, but these only served to 
 delay and prolong the deliberations, and many a formidable speech 
 on the merits of the question was delivered when in reality the 
 matter before the House was one of parliamentary routine. Finally, 
 after months of intermittent debate, after the appointment in each 
 house of a select committee, 11 the matter was adjusted by a con 
 ference committee of both houses, 10 and thus a measure was evolved 
 which passed the two branches of Congress. 
 
 As finally passed, the second confiscation law bore the title, "An 
 Act to suppress Insurrection, to punish Treason and Rebellion, to 
 seize and confiscate the Property of Rebels, and for other Pur 
 poses . 11 The first four sections, drawn from the Senate bill, relate 
 to the crime of treason and rebellion and prescribe punishments. Sec 
 tions 5 and 6 declare the forfeiture to the United States of the 
 property of certain specified classes of "rebels". A distinction was 
 made between two main groups. The property of all officers whether 
 civil, military, or naval, of the Confederate government or of any 
 of the "rebel" states, and of citizens of loyal states giving aid or 
 comfort to the rebellion, was declared seizable at once without quali 
 fication. Other persons in any part of the United States who were 
 
 9 Cong. Globe, 37 Cong., 2 sess., pp. 1846, 1991. 
 
 10 Ibid., p. 3166. 
 
 11 Stat. at Large, XII. 589. The expression "other purposes" referred to 
 those sections of the statute which provided for the forfeiture of slaves. 
 
THE LEGISLATIVE POLICY OF CONFISCATION 11 
 
 engaged in or aiding the rebellion were to be warned by public proc 
 lamation and given sixty days in which to return to their allegiance ; 
 if they failed to do so their property was to be confiscated. Pro 
 ceedings against suspected property were to be instituted in the 
 federal district or circuit courts, and the method of trial was to 
 conform as nearly as might be to that of revenue or admiralty cases. 
 If found to belong to a person who had engaged in rebellion, or 
 who had given it aid or comfort, the goods were to be condemned 
 "as enemy s property" and to become the property of the United 
 States. The proceeds were to be paid into the treasury of the 
 United States, and applied to the support of the armies. Three 
 important sections, referring to slaves, do not concern us here. By 
 section 13 the President was given power to pardon offenses named 
 in the act. 
 
 An analysis of the vote on this measure shows that the division 
 resulted from a complication of sectional with party interests. In 
 the House of Representatives the count stood eighty-two to sixty- 
 eight. 12 Of the supporters of the bill, 13 seventy-seven were Repub- 
 licans representing constituencies north of the Ohio. All but three 
 of the Democrats who voted opposed the bill. No such solidarity 
 was to be found in the majority party, for twenty of the Republican 
 or Unionist members answered "nay". Of the twenty-five border 
 state men all but three voted with the opposition. 14 In the Senate 
 the measure received twenty-seven affirmative and thirteen negative 
 votes. 15 Eight of those voting in the negative were border state 
 men, while only seven were thorough Democrats, showing again the 
 large part which sectional sympathies played in determining the vote. 
 
 But the measure was not yet law. President Lincoln, who had 
 never expressed more than a mild approval of confiscation, objected 
 to several features of the congressional bill and prepared a rather 
 elaborate veto message. 16 The measure, he said, would result in the 
 
 " Cong. Globe, 37 Cong., 2 sess., p. 2361. 
 
 11 The three Democrats who favored the bill were : William G. Brown, from 
 the loyal portion of Virginia, John Hickman, a Douglas Democrat from Penn 
 sylvania, and John W. Noell, a Union Democrat of Missouri. 
 
 14 Besides Brown and Noell the only border state man who favored confisca 
 tion was the intense Unionist and friend of Lincoln, Ftancis P. Blair of 
 Missouri. 
 
 15 Cong. Globe, 37 Cong., 2 sess., p. 3276. 
 
 "Senate Journal, 37 Cong., 2 sess., July 17, 1862, pp. 872-874; National 
 Intelligencer, July 18, 1862. 
 
12 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 divesting of the title to real estate forever. "For the causes of trea 
 son", he pointed out, and for the ingredients of treason not amount 
 ing to the full crime", it declared forfeitures extending beyond the 
 lives of the guilty parties. This feature of the bill the President 
 regarded as a violation of the attainder clause of the Constitution. 
 Further he argued that the act by proceedings in rem would forfeit 
 property "without a conviction of the supposed criminal, or a per 
 sonal hearing given him in any proceeding". When it was known 
 in Congress that President Lincoln intended to veto the bill, a rather 
 unusual proceeding was resorted to. A joint resolution was rushed 
 through both houses which was intended as "explanatory" to the 
 original measure. 17 In accordance with this resolution, the law was 
 not to be construed as applying to acts done prior to its passage, 18 
 nor "as working a forfeiture of the real estate of the offender be 
 yond his natural life". Although this left an important part of his 
 objections untouched (i. c., as to the condemnation of property 
 without allowing a personal hearing to the supposed criminal), 
 Lincoln approved the measure in its modified form, and on the last 
 day of the session, July 17, 1862, he signed the act and the explana 
 tory resolution "as substantially one". 19 
 
 17 Stat. at Large, XII. 627 ; Cong. Globe, 37 Cong., 2 sess., p. 3380. 
 
 18 In Conrad v. Waples, 96 U. S. 279, it was decided that confiscation under 
 the act of July 17, 1862, applied only to the property of persons who might there 
 after be guilty of acts of treason and disloyalty. For judicial interpretation of 
 the duration feature of the resolution, see Wallach v. Van Riswick, 92 U. S. 
 208 ; Bigelow v. Forrest, 9 Wallace 339 ; infra, pp. 24-28. 
 
 19 Senate Journal, 37 Cong., 2 sess., July 17, 1862, pp. 871-872. 
 
II. THE PROCESS AND EXTENT OF JUDICIAL 
 CONFISCATION 
 
 THESE widely different measures of confiscation were put into 
 operation side by side, and remained so during the war. 20 By the 
 terms of each of the statutes, the forfeiture of property was made 
 a strictly judicial process, enforced through the federal district 
 courts under the direction of the Attorney-General and the district 
 attorneys. Information concerning confiscable property might reach 
 the federal officials through regular channels, as by the deposition 
 of a United .States commissioner; it might be supplied gratuitously 
 by some citizen informer, or it might be secured by the interception 
 of letters and despatches intended for Confederate owners. The 7 
 application of the laws, it must be remembered, was limited to those / 
 districts where federal courts were in operation, and, since jurisdic 
 tion depended upon situs, 21 the property contemplated for seizure 
 must be located in the north though owned by "rebels". 
 
 In beginning suit, a libel of information, analogous to that de 
 nounced against smuggled goods, would be filed with the district 
 attorney ; a monition or public advertisement would then be issued by 
 the marshal summoning the owner to appear in court and establish 
 his loyalty ; then would follow, at its proper time on the docket, the 
 suit itself, and in case of condemnation, the marshal would be 
 directed to sell the property at public auction, turning the proceeds, 
 after the payment of costs, into the public treasury. 
 
 The difficulties of enforcing these acts made the work exceed 
 ingly distracting to the officials. No distinct department of justice 
 existed at that time 22 and the office of the Attorney-General, to whom 
 legal questions were referred, was inadequate to the handling of any 
 
 20 The existence of the two acts side by side produced not a little confusion. 
 Prosecutions in a given case might be instituted under either act or under both, 
 according to the circumstances. In the Wiley case (Annual Cycl., 1863, p. 220) 
 the libel was under the act of 1861, and the proof under that of 1862. 
 
 21 A district court In New York, for instance, could not acquire jurisdiction 
 over the stock of an Illinois corporation. U. S. v. 1756 Shares of Stock, 27 Fed. 
 Cas. 337. 
 
 22 The establishment of the department of justice did not take place until 
 June 22, 1870. Stat. at Large, XVI. 162. 
 
 (13) 
 
14 THE CONFISCATION Ol ? PROPERTY DURING THE CIVIL WAR 
 
 considerable amount of business. 23 Both the published reports and 
 the manuscript records of the office indicate that its machinery was 
 slow in starting, and it seems to have encountered considerable 
 friction when it did start. Upon the difficult legal questions which 
 arose in connection with the initiation of proceedings, there was con 
 siderable confusion of thought in the minds of the district attorneys, 
 and little help in this matter was secured from the office of the 
 Attorney-General who invariably "declined to advise the law officers 
 of the government as to what constitutes a proper case for action 
 under the law". 24 The local officers, thus left to their own respon 
 sibility, naturally hesitated to bring action, and this difficulty was 
 augmented by the fact that no regular provision was made for 
 defraying the preliminary expenses of preparing a suit in cases 
 where the government might fail to secure conviction. 
 
 \ Taken all together, therefore, this seemingly smooth and work 
 able method of seizure was seen to involve serious obstacles. The 
 
 ) very correctness and completeness of the judicial process made it 
 impracticable in a strenuous time when things had to be done 
 quickly, and when a dilatory execution would seem to defeat the 
 * whole purpose of the law. It was natural under the circumstances 
 for an impatient general or provost-marshal to take the law into his 
 own hands and by his summary action become involved in disputes 
 with the judiciary. These vigorous men regarded confiscation as a 
 war measure, and proceeded to carry it out as such. 25 It was doubt 
 less the purpose of Congress, however, to guard carefully the exer 
 cise of a power so formidable, and one which might be put to so 
 great abuse. 
 
 In view of these distracting conditions the lax and irregular 
 enforcement of the acts will not cause surprise. Though a con 
 siderable litigation was occasioned, the net results, after deducting 
 
 28 The total monthly pay-roll at this period amounted to only $1,522.06. while 
 the schedule of salaries showed only eight employees in the entire office, the 
 Attorney-General, assistant attorney-general, chief clerk, four assistant clerks, 
 and one messenger. (These data are revealed in the files of the Attorney- 
 General s office, Washington, for September, 1864.) 
 
 "Acting Attorney-General T. J. Coffee to R. I. Milton, U. S. Commissioner, 
 Albany, New York, September 2, 1861. (Letter-Book "B 4", Dept. of Justice, p. 
 147. A series of such letters of instruction was issued to district attorneys and 
 marshals during the same month. The one cited is merely typical.) 
 
 25 Instances of conflict between civil and military officers regarding confisca 
 tion were not uncommon. A dispute arose over a military seizure of property 
 in Washington belonging to John A. Campbell, Confederate assistant secretary 
 of war. House Ex. Doc. M, 37 Cong., 3 sess. For General Lew Wallace s action 
 in directing extensive military seizures in Maryland see Official Record, third 
 series, IV. 407, 413. 431. 
 
THE PROCESS AND EXTENT OF JUDICIAL CONFISCATION 15 
 
 the heavy judicial costs. 26 and after allowing for cases dismissed, | 
 appealed, "settled without suit", or in which the judgment was I 
 entered for the claimant, were almost incredibly small. 27 In New 
 York, $19.614; in Louisiana. $67.973; in West Virginia, $11.000; 
 in Indiana, $5,737 these sums, so far as mere financial totals can 
 tell the story, are representative of the extent of the confiscations. 
 According to a report of the solicitor of the Treasury Department 
 dated December 27. 1867, the total proceeds actually paid into the 
 treasury up to that time amounted to the insignificant sum of if 
 $129,680.-* In comparison with these figures, the confident predic 
 tions of the supporters of confiscation in Congress as to the material 
 weakening of the enemy s resources sound strange indeed. This 
 plausible justification, then, of a policy so extreme as that of 
 general confiscation was based on an unfortunate miscalculation. 
 Enough indeed was done to work individual hardship, and to add 
 to the bitter feelings following the war, but the comparatively few 
 transfers of property gave the Union government no material 
 advantage at all sufficient to justify so questionable a war measure. 
 Financially, it may be said, confiscation was a failure, while the I 
 other purpose of the act, that of punishing the "rebels , was very f 
 unequally accomplished. 
 
 -" The cost attached to the filing and publication of the libel, and the fees 
 charged by the district attorney, clerk, and marshal, always reduced by a large 
 proportion the balance remaining to the United States. The following case pre 
 sents a rather striking coincidence, the various items of expense forming a totaJ 
 which corresponds exactly to the amount of the proceeds. Files of U. S. District 
 Court for Indiana, case no. 205, January 17, 1863. 
 
 Proceeds of sale (of "credits etc.") $202.00 
 
 Marshal s costs 51.36 
 
 Marshal s fees 63.27 
 
 Docket fees 40.00 
 
 Clerk s costs 44.12 
 
 Clerk s fees 3.25 $202.00 
 
 Balance for United States treasury 0. 
 
 - An examination of the docket books and files of the federal district court 
 in Indiana reveals 83 cases of confiscation between September, 1862, and May, 
 1865. Of these, 44 resulted in forfeiture. The property seized was miscellaneous 
 in character, including real estate, credits, cash, judgments in court, commercial 
 stocks, government bonds, cotton, whiskey, a stallion, and a steam-engine. In 
 the District of Columbia, from May, 1863, when condemnations began, to Septem 
 ber, 1865, the number of cases docketed was 52, and the number of forfeitures 
 27. The totals given in the annual reports of the solicitor of the treasury are 
 unsatisfactory, since he combines confiscation suits with forfeitures under non- 
 intercourse regulations, and sometimes with prize cases. See Finance Reports, 
 1863, p. 90, 1864, p. 88. 
 
 ** Sen. Ex. Doc. 58, 40 Cong., 2 sess. This report of the solicitor was based 
 upon the financial returns which marshals were required to make to the Treas 
 ury Department. The total which it shows does not include the returns in the 
 District of Columbia, amounting to $33,265, which were deposited in the registry 
 of the court and later restored to the owners. It excludes also the proceeds 
 of the Virginia confiscations, because of the fact that the clerk of the district 
 court of that state was a defaulter to the extent of $91,579.29. The proceeds 
 of the Kansas cases were not reckoned in for a similar reason. By the addi- 
 t.on of such sums as these the net proceeds of confiscation will be seen to approx 
 imate $275,000. (Considerable unpublished material relating to the Virginia 
 confiscations, comprising letters, receipts, depositions, and reports of investi 
 gating officers, may be found in the files of the Miscellaneous Division of the 
 Treasury Department, marked "Cotton and Captured Property Record, 1370". 
 Regarding the Kansas cases, see Osborn v. U. S., 91 U. S. 474.) 
 
III. CONFISCATION AS A BELLIGERENT RIGHT 
 
 IN the field of judicial interpretation the confiscation problem 
 proved equally as troublesome as in Congressional debate or in its 
 official enforcement. The relation of confiscation to the rules of 
 international law was, to begin with, the source of continual con 
 fusion. When the confiscation policy was under discussion both 
 sides appealed to the law of nations for a support of their claims. 
 As usual in such controversies, much would have been gained if the 
 direct issue had been clearly stated and kept in mind. Freed from 
 its entanglements the question amounts to this : Does the law of 
 nations allow to a belligerent in a public war the right to confiscate 
 whatever property, within reach of its courts, belongs to the enemy? 
 Numerous misapprehensions and inaccuracies, however, entered into 
 the actual discussion of this issue. There was great difference of 
 opinion as to the applicability of the rules of international law to the 
 conflict then waging. Was the struggle to be regarded as a domestic 
 rebellion, or a public war? Were those supporting the Confederate 
 cause to be treated as rebels or as enemies? In a civil war, is a 
 nation restricted by the rules of international law in its operations 
 against the insurgent power, or may it punish these insurgents by 
 municipal regulations? 
 
 But, assuming that the legal character of the Civil War had been 
 determined, a further difficulty remained. There was commonly a 
 failure, in the debates, to discriminate between a general confisca 
 tion of property within the jurisdiction of the confiscating govern 
 ment, and the treatment accorded by victorious armies to private 
 property found within the limits of military occupation. Thus the 
 general rule exempting private property on land from the sort of 
 capture which similar property must suffer at sea, was erroneously 
 appealed to as an inhibition upon the right of judicial confiscation. 29 
 
 20 Even Dunning 1 , in his Essays on the Civil War and Reconstruction, though 
 he treats directly the principles of international law involved in the confiscation 
 policy, gives no place to this distinction between military seizure and judicial 
 confiscation. "In the modern practice of civilized nations", he says, "the gen 
 eral confiscation of enemies private property is unknown. It is as obsolete as 
 the poisoning of wells in an enemy s country. As a rule, real estate is left to 
 its owners, and movables are appropriated only so far as military necessity, 
 as judged by the commander in the field, seems to demand it". Dunning then 
 continues the discussion, still with reference to the treatment of private prop 
 erty by military officers, and for authority refers to the passage in Halleck 
 which deals not with confiscation by judicial process within the jurisdiction of 
 the confiscating state, but with the treatment of property by generals in mili 
 tary occupation of a part of the enemy s country. See Dunning, Essays pp. 
 31-32. 
 
 (16) 
 
CONFISCATION AS A BELLIGERENT RIGHT 17 
 
 That a military capture on land analogous to prize at sea was not 
 regarded as a legitimate war measure was so obvious and well recog 
 nized a principle that it would hardly require a continual reaffirma- 
 tion. It was a very different matter, however, so far as the law 
 and practice of nations was concerned, for a belligerent to attack 
 through its courts whatever enemy s property might be available 
 within its limits. Where the language was accurate, it was this form 
 of seizure that was contemplated whenever confiscation was claimed 
 as a belligerent right. In this connection much was said about the 
 relation between conqueror and vanquished, which was also beside 
 the point. 
 
 When after the war the question of confiscation as a belligerent 
 right was presented to the Supreme Court 30 the legal precedents 
 were various and doubtful. 31 Though the trend of modern usage 
 favored the milder practice, the court, without arguing the points of 
 international law involved, rested the justification for the second 
 
 "Miller v. U. S., 11 Wallace 268. 
 
 " Among the early authorities on international law whose opinion would 
 carry weight in America, Vattel and Puffendorf favored the milder practice, 
 Burlamaqui and Rutherford did not deal directly with the form of confiscation 
 adopted during the Civil War, while Bynkershoeck was among the few to state 
 in its bald severity the extreme right of the belligerent over the enemy s prop 
 erty. Grotius, the pioneer authority, in the field of modern international law, 
 allows to a belligerent very extensive rights over the persons and property of 
 the enemy. In his closest approach to the subject of confiscation as understood 
 in the Civil War he admits, though without any indication of individual approval, 
 that the right of appropriation applies to "enemy goods found among us at 
 the outbreak of war". We may class Grotius, then, as a supporter of the 
 belligerent right of confiscation, but in so doing we must bear in mind that, 
 in large part, the tone of his work is that of a reluctant statement of unregen- 
 erate practice. To derive clear authority for confiscation indeed from any of 
 these early writers requires a rather sympathetic editing. Vattel, Law of 
 Nations (Luke White ed., Dublin, 1792), bk. III., sec. 76; Puffendorf, Droit 
 de la Nature et des Gens, liv. VIII., ch. v., sec. xvii ff. ; Burlamaqui, Principles 
 of Natural and Political Science (Nugent transl., Boston, 1792), pp. 375 ft.; 
 Rutherford, Institutes of Natural Law (second Am. ed., 1832), ch. ix., passim; 
 Bynkershoek, Quaestiones Juris Publici (1737), lib. L, ch. 7, p. 175; Grotius, 
 De Jure Belli ac Pads, lib. III., cap. vi, sec. xiii. In the case of Ware v. 
 Hylton, 3 Dallas 199, argued before the Supreme Court in 1796, many prom 
 inent American jurists of the time expressed opinions upon the right of confis 
 cation. John Marshall, arguing for Virginia s claim to certain British debts 
 sequestered during the Revolution, declared emphatically for the general right 
 of confiscation, but his attitude was that of an advocate not a judge, and his 
 interpretation of the authorities was not infallible. Later, as Chief Justice, 
 Marshall prepared the opinion of the Supreme Court in Brown v. U. S. (8 
 Cranch 110), a case involving the right of the United States government to 
 seize British property found on land at the commencement of the War of 1812. 
 Basing his sweeping conclusion upon the partial citation of authorities sub- 
 
18 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 confiscation act upon the law of nations. The measure was sus 
 tained on this broad basis as an "undoubted belligerent right and 
 was construed as the exercise of a war power, not as a municipal 
 regulation. It is to be observed that there underlay this decision a 
 presumption which had caused much controversy and honest differ 
 ence of opinion a presumption which was not rendered less con 
 spicuous by the omission of arguments drawn from the domain of 
 international law. The question was a fair one whether the right 
 of confiscation could be clearly claimed on the basis of the law of 
 nations, and this was a point of much larger importance and greater 
 difficulty than would be indicated by the off-hand assertion of the 
 court that Congress in passing the second confiscation act was exer 
 cising "an undoubted belligerent right". It has been an accepted 
 practice in our courts to recognize international law as a "part of 
 our law", 32 and while the judicial branch of the government would 
 not be likely to invalidate a law of Congress on the ground that it 
 violated the rules of international law, it usually takes care to con 
 sider these rules as fully as possible, and even to interpret the intent 
 of Congress in the light of such rules. Even though one may not 
 deny the soundness of the position assumed by the Supreme Court, 
 there is still room for the wish that so important a subject had been 
 handled with less superficiality. 
 
 mitted by the counsel for the appellant, Marshall wrote : "It may be con 
 sidered as the opinion of all who have written on the jus belli, that war gives 
 the light to confiscate, but does not itself confiscate the property of the enemy". 
 A special act, so the court held, was necessary to authorize such seizures. Story 
 went even further in his dissenting opinion and maintained that the right of 
 confiscation vested at once in the executive on the outbreak of war, without 
 the express provision of any statute. When one seeks the authority which 
 these men quote, however, he is apt to find, in the passage cited, a treatment 
 of capture, or booty, or the levy of contributions topics quite distinct from 
 confiscation. Story s reference to Puffendorf as a supporter of confiscation 
 is an example of this stretching of the authorities. (8 Cranch 143.) Of the 
 later writers, Kent favored the sterner rule, while Wheaton emphasized the 
 milder practice which, however, he declared to be "not inflexible". Kent 
 (Comm., eleventh ed.), I. 66-67; Wheaton, International Law (Boyd ed.), pp. 
 410, 413. 
 
 "Hilton v. Guyot, 159 U. S. 163; Ware v. Hylton, 3 Dallas 281; the Paquette 
 Habana, 175 U. S. 700. 
 
IV. THE PROBLEM OF REBEL STATUS 
 
 WHEN we study the problem of rebel status in relation to con 
 fiscation another series of legal tangles emerges. Though the ques 
 tion of such "status" might appear chiefly theoretical and involve 
 much abstract reasoning, yet it seemed an inevitable requirement of 
 the laws of intellect that men who discussed confiscation should 
 have in mind some guiding principle, either expressed or implied, 
 as to the legal standing of persons engaged in the rebellion. In this 
 connection, therefore, the question bore directly upon the larger 
 legal problems which the Civil War called forth. Here arose the 
 same difficulty which presented itself in connection with the treat 
 ment of Confederate privateers, the blockading of southern ports, 
 and the non-intercourse laws. 33 In a different phase the question 
 again forced itself upon the attention of the government after the 
 war when reconstruction issues were pending and the policy of 
 pardon and amnesty was urged by the President and opposed by the 
 radicals of Congress. 
 
 At first sight the situation would seem to resolve itself into a 
 simple alternative. On the one hand, the severity of the law of 
 treason could be invoked, and the insurgents could be held liable to 
 treatment as criminals. In this case the government would be acting 
 in the capacity of a sovereign punishing its rebellious citizens for 
 their violation of allegiance. Or, on the other hand, the rebellion 
 could be regarded as a public war, and all the privileges and ameni 
 ties prescribed by the law of nations for the treatment of belligerents 
 could be accorded to the Confederacy. The government, in taking 
 this attitude, would appear to be laying aside its sovereign control 
 over the South, and opposing the Confederate states only as a 
 belligerent would oppose his enemy. The struggle would then be a 
 clash between governments, not a conflict of individuals against 
 their government. There was, however, a third possibility which 
 would be most likely to commend itself to an administration guided 
 by a spirit of expediency or practical opportunism rather than of 
 rigid adherence to consistent principles. Instead of selecting one or 
 
 " The well-known work of Professor Dunning, Essays on the Civil War and 
 Reconstruction, contains the best general discussion of these legal problems 
 which the writer has found. 
 
 (19) 
 
20 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 the other of the two alternatives as an exclusive rule of conduct, the 
 government could suit the rule to the occasion, and adopt whichever 
 course might appear most suitable in a given situation. The theory 
 of traitor status was, in the opinion of many, a convenient justifica 
 tion for certain severe measures which were more or less directly 
 contemplated and which could rest on no other accepted principle, 
 as for instance the condemnation after the war of the principal 
 Confederate leaders under domestic criminal law. It became appar 
 ent at once, however, that this severe principle could not be adhered 
 to rigidly. In the ordinary conduct of the war it was the jus belli, 
 not the lex talionis which must govern the armies. In the declara 
 tion of blockade and in the treatment of privateers as public enemies 
 instead of pirates, the administration followed the only rational and 
 humane course possible, but in these particulars the insurgents were 
 undoubtedly recognized as belligerents. 
 
 So far the way seemed clearly marked out by the plain dictates 
 of reason and humanity, and there was no serious difference of 
 opinion. When the question of confiscation was reached, however, 
 there was no generally conceded principle around which all could 
 unite, and it was in this connection that the difficulty regarding rebel 
 status reached its most acute stage. The subject was beclouded 
 rather than clarified by the debates. On the one hand the rebels 
 were referred to as red-handed, black-hearted pirates, and traitors, 34 
 unworthy of claiming a single belligerent right. On the other hand 
 they were represented as a regularly constituted governmental power 
 with an organized administration in control, an authorized army in 
 the field, and with all the attributes of a belligerent in a public war. 35 
 
 It remained for the Supreme Court, in a few clear-cut decisions, 
 to present what seems the only practical solution of the problem, by 
 adopting the convenient and flexible principle of the double status 
 of the rebels. In the Amy Warwick case Justice Sprague thus ex- 
 
 S4 See speeches of Elliot of Massachusetts in the House of Representatives 
 (Cong. Globe, 37 Cong., 2 sess., p. 2234), Howard of Michigan (ibid., p. 1717), 
 and Davis of Kentucky (ibid,., p. 1759). 
 
 85 The words of Blair of Pennsylvania, who favored confiscation, present a 
 good statement of the principle of belligerent status : "What are our relations to 
 these rebellious people? They are at war with us, having an organized govern 
 ment in the cabinet, and an organized army in the field, and I hold that in the 
 conduct and management of the war on our part we are compelled to act 
 towards them as if they were a foreign Government of a thousand years 
 existence, between whom and us hostilities have broken out". Cong. Globe, 37 
 Cong., 2 sess., p. 2299. 
 
THE PROBLEM OF REBEL STATUS 21 
 
 pressed the views of the majority of the court: "I am satisfied that 
 the United States as a nation have full and complete belligerent 
 rights, which are in no degree impaired by the fact that their enemies 
 owe allegiance and have superadded the guilt of treason to that 
 of unjust war". 36 A similar expression is that of Justice Grier in 
 the Prize Cases : "The law of nations . . . contains no such anoma 
 lous doctrine as that which this court are now for the first time 
 desired to pronounce, to wit : That insurgents who have risen in 
 rebellion against their sovereign, expelled her courts, established a 
 revolutionary government, organized armies, and commenced hos 
 tilities, are not enemies because they are traitors; and a war levied 
 on the government by traitors, in order to dismember and destroy 
 it, is not a /ar because it is an insurrection " 31 Again, in Miller v. 
 United States : "Whatever may be true in regard to a rebellion 
 that does not rise to the magnitude of a war, it must be that when 
 it has become a recognized war those who are engaged in it are to 
 be regarded as enemies." 38 
 
 With this statement of the broad theoretical problem in mind 
 we may now turn to a detailed phase of the question of rebel status 
 in which its practical application and its bearing upon individual 
 rights r-tan.l out clearly. One of the coalmen difficr.lties confronting 
 the courts in the enforcement of the confiscation acts was to decide 
 whether, in the seizure of property of persons adhering to the rebel 
 lion, opportunity should be given to the supposed "rebel" to appear I 
 in court and plead his case. On the one hand stood the principle 
 that an enemy has no standing in court, while on the other hand the 
 very nature of the proceeding under the confiscation acts was such 
 that judgment must rest upon a determination of the fact as to 
 whether or not the party was actually engaged in the rebellion a 
 point on which the owner could claim a right to be heard. More 
 over it was ably contended that a quasi-criminal character 39 per- 
 
 M 2 Sprague 123. 
 
 17 2 Black 670. See also pp. 672 and 673. As to the necessity of some 
 concession of belligerent rights in the case of a formidable rebellion, see Will- 
 Hams r. Bruffy, 96 U. S. 187. There the Supreme Court declared that such con 
 cessions depend upon "the considerations of justice, humanity, and policy con 
 trolling the government". 
 
 *11 Wallace 309. 
 
 19 The Supreme Court is authority for the statement that actions in confisca 
 tion were "in no sense criminal proceedings", and were "not governed by the 
 rules that prevail in respect to indictments or criminal informations". The only 
 
22 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 tained to confiscation proceedings, requiring the same strict con 
 struction of the law in the interest of the accused as belongs to 
 actions brought under a criminal indictment Such construction 
 would certainly not deny to the suspected "rebel" all opportunity 
 whatever of conducting a defense in court. 
 
 The practice during the war on this point was uncertain and 
 frequently detrimental to the interests of the accused. In the dis 
 trict court for the eastern district of Virginia a general rule was 
 prescribed which disallowed a hearing in the case of persons adher 
 ing to the rebellion. 40 In a case tried before Judge Betts of the 
 southern district of New York in July, 1863, the defendant, a resi 
 dent of Alabama, 41 duly filed an answer to the allegations set forth 
 in the libel of information against his property, but the judge 
 ordered this answer to be stricken from the files on the ground that 
 the defendant was an "alien enemy", and hence had no persona 
 standi in a court of the United States. 42 An able criticism of Judge 
 Betts s position is to be found in the Annual Cyclopedia for 1863. 
 The writer points out that if Betts s doctrine was correct "the mere 
 fact of Mr. Wiley s [the defendant s] residence in a southern insur 
 rectionary state precludes him from appearing and contesting the 
 allegations of the libel that he has rendered active aid to the rebel 
 lion. . . . Under such a practice every dollar of property owned by 
 Southern citizens in the North, no matter how loyal, need only be 
 seized under an allegation of disloyal practices, and as the accused 
 cannot be heard to deny that allegation (and if he remains silent 
 no proof of it is required), the whole matter is very summarily dis 
 posed of to the great comfort and advantage of the informer, and 
 to the increment of his personal possessions." 
 
 This question whether a rebel should have a hearing in a federal 
 court on the issue of the condemnation of his property waited till 
 after the war for its settlement by the Supreme Court. The case 
 
 subject of inquiry in such cases, in the opinion of the court, was the liability of 
 the property to confiscation, and persons were referred to only to identify the 
 property. (The Confiscation Cases, 20 Wallace 104-105. In this case there were 
 three dissenting judgrs. ) For a vigorous statement of the view that the con 
 fiscations partook largely of the nature of criminal statutes, see Field s dissent 
 ing opinion in Tyler v. Defrees, 11 Wallace 331, and Lincoln s proposed veto 
 message, Senate Journal, 37 Cong., 2 sess., July 17, 1862, p. 873. 
 
 40 Semple v. U. S., 21 Fed. Cas. 1072. 
 
 41 Annual Cycl., 1863, p. 220. 
 
 <2 Jecker v. Montgomery, 18 Howard 112, and cases cited. 
 
THE PROBLEM OF REBEL STATUS 23 
 
 was that of McVeigh v. U. S. one of the prominent confiscation 
 cases. 43 In its facts the case resembled that in which Judge Betts 
 had given his radical decision. A libel of information had been 
 filed in the eastern Virginia district to reach certain real and per 
 sonal property of McVeigh who was charged with having engaged 
 in armed rebellion. McVeigh appeared by counsel, interposed a 
 claim to the property, and filed an answer to the information. By 
 motion of the district attorney, however, the appearance, answer, 
 and claim were stricken from the files for the reason that the re 
 spondent was a "resident of the city of Richmond, within the Con 
 federate lines, and a rebel". The property was condemned and 
 ordered to be sold. When the case reached the Supreme Court the 
 judgment was reversed, and the action of the district attorney 
 unanimously condemned. The court held that McVeigh s alleged 
 criminality lay at the foundation of the proceeding, and that the 
 questions of his guilt and ownership were therefore fundamental 
 in the case. The order to strike the claim and answer from the files 
 on the ground that McVeigh was a "rebel" amounted to a pre- 
 judgment of the very point in question without a hearing. The 
 court below in issuing this order had acted on the theory that no 
 enemy of the United States could have standing in its courts, but the 
 higher tribunal refused to allow such an application of this prin 
 ciple. On this fundamental question, therefore, the Supreme Court 
 was committed to the proposition that a "rebel" should not be 
 denied the right to a hearing in connection with the seizure of his 
 property by a federal court. Had this conclusion been pronounced 
 early enough to produce uniformity of practice during the war, and 
 had the Supreme Court itself maintained this principle consistently, 
 the advantage of the McVeigh decision would have been far greater 
 than was actually the case. 
 
 "11 Wallace 259; see also Windsor v. McVeigh, 93 U. S. 274. 
 
V. THE DURATION OF THE FORFEITURE 
 
 WE consider under this caption the legal controversy as to 
 whether judgments against the property of "rebels" should involve 
 the surrender of the full title in fee simple, or only a life interest. 
 In spite of the fact that Congress took special pains to be explicit 
 on this point, even to the extent of passing a joint resolution ex 
 planatory of the original statute, 44 it seems to have been variously 
 interpreted. Judge Underwood of Virginia, in the Hugh Latham 
 case, argued for the absolute forfeiture of real estate as in keeping 
 with the intention of the constitution and the statute. Congress did 
 not mean, declared the judge, that the "traitor" should merely sur 
 render a life merest, but only that the forfeiture must be perfected 
 during his life. As for the joint resolution, he interpreted it as 
 merely intended to keep the legislation within the constitutional 
 rights of Congress which permit no attainder of treason that shall 
 "work corruption of blood or forfeiture except during the life of 
 the person attainted". 45 The words "except during" were held to 
 apply to the specific legal act by which the forfeiture was accom 
 plished, rather than to its duration. 
 
 When, however, this important question was presented to the 
 Supreme Court in 1869, the reasoning of Judge Underwood was set 
 aside, and the duration of the forfeiture was held to terminate with 
 the life of the offender. One Douglas Forrest had brought suit in 
 a Virginia court to recover the forfeited estate of his father French 
 Forrest, who had been a Confederate naval officer, and the case was 
 appealed to the Supreme Court. 46 The original confiscation had 
 taken place in 1863, and no question was raised as to the regularity 
 of the confiscation decree, or the validity of the marshal s sale 
 under it. Forrest maintained, however, that only a life interest had 
 been conveyed by this sale, while the plaintiff, Bigelow, claimed a 
 right in fee simple to the property. The court decided that the act 
 of 1862 and the accompanying explanatory resolution are to be 
 taken together, and that they "admit of no doubt that all which 
 could under the law become the property of the United States, or 
 
 44 Supra, p. 12. 
 
 45 McPherson, Hist, of the Rebellion, p. 206. 
 4(1 Bigelow v. Forrest, 9 Wallace 339. 
 
 (24) 
 
THE DURATION OF THE FORFEITURE 25 
 
 could be sold by virtue of a decree of condemnation and order of 
 sale, was a right to the property seized terminating with the life of 
 the person for whose act it had been seized". No title could there 
 fore be conferred, which would outlast the life of the original 
 offender. 47 
 
 As to forfeitures under the act of 1861, their effect was held 
 to be absolute, permitting no recovery of the property by the owner s 
 heirs. The reasoning of the Supreme Court in this connection em 
 phasizes the difference in the nature of the two acts. 48 Whereas 
 proceedings under the act of 1862 were directed against the owner, 
 because of his quasi-criminal character, the proceedings under the 
 act of 1861 were directed merely against the property. Nothing 
 was said about treason ; therefore the principles of attainder would 
 not apply. Condemnations under this act were based upon the 
 hostile use of the property, and were regarded as analogous to the 
 condemnation of goods for smuggling or for violation of non- 
 intercourse regulations, and this interpretation required that the 
 whole title be surrendered. 
 
 "See also, on the duration of the forfeiture, Day v. Micou, 18 Wall. 156; 
 U. S. v. Clarke, 20 Wall. 92 ; Waples v. Hays, 108 U. S. 6. 
 "Kirk v. Lynd. 106 U. S. 315. 
 
VI. REVERSIONARY RIGHTS IN CONFISCATED 
 PROPERTY 
 
 THE points just noted regarding the duration of the forfeiture 
 are intimately connected with the difficult problem of the rever 
 sionary right in confiscated property. A deed to the life estate in a 
 piece of realty secured at a confiscation sale does not carry a title in 
 fee to the property, since the heirs of the "rebel" owner have a 
 future interest which takes effect upon his death. Such a situation 
 affords an excellent example of a "reversion", which has been defined 
 as "the estate left in a party after he has conveyed away less than 
 a fee". 49 This naturally involves a "reversionary tenant", /. e., a 
 holder of the future rights which revert when the user s interest 
 terminates. It is well understood in realty law that such a rever 
 sionary right in property is marketable, and may be transferred. 50 
 The question arose frequently whether, after confiscation proceed 
 ings had been completed, the dispossessed "rebel" could still consider 
 himself as the holder and possible conveyer of that remaining share 
 in the estate which subsisted after the life interest had been trans 
 ferred. It is clear that if he could convey this expectant right the 
 penalty of his forfeiture would be much less severe. We may now 
 turn to some of the judicial pronouncements dealing with this 
 problem. 
 
 In the case of Wallach r. Van Riswick, appealed to the Supreme 
 Court in 1875, the question was presented whether the former 
 owner of a confiscated estate could transfer by deed the suspended 
 fee to the property. 51 The court expressed the opinion that Con 
 gress had passed the second confiscation act with the purpose of 
 completely dispossessing the owner of all benefits in the property 
 seized, and had not intended to permit him to retain any right of 
 conveyance whatever; that the forfeiture while it lasted was com 
 plete, "a devolution upon the United States of the owner s entire 
 right" ; and that the provision regarding the duration of the for- 
 
 49 American Law and Procedure (pub. by Lasalle Extension University, Chi 
 cago), V. 92. See also Kale, Future Interests, sees. 68; 121 foil. 
 
 60 Burton v. Smith, 13 Peters 480 ; Hempstead v. Dickson, 20 111. 193 ; Will 
 iams on Real Property, p. 256. 
 
 81 92 U. S. 202. 
 
 (26) 
 
REVERSIONARY RIGHTS IN CONFISCATED PROPERTY 27 
 
 feiture was introduced for the advantage of the children and heirs 
 alone, not as a "benefit to the traitor by leaving in him a vested 
 interest in the subject of the forfeiture". While evading the 
 theoretical question as to where the suspended fee resided during 
 the life of the "traitor" the court nevertheless declared that it could 
 not dwell in the offender, since Congress did not intend that he 
 should be the tenant of the reversion. On the basis of such argu 
 ments the court ruled that the offender had no power to dispose of 
 the future title to his property. 
 
 It would be hard to find a more categorical and positive dec 
 laration of law than the Wallach decision, and yet in the course 
 of a few years the Supreme Court gradually retreated from its 
 position as there stated, until it had virtually reversed its opinion. 
 We find various decisions in which it was maintained that after the 
 death of the offender, his heirs secure the property by inheritance, 
 and not by grant from the government. This would tend to place 
 the suspended fee in the offender and make him the tenant in rever 
 sion. 52 In the case of the Illinois Central Railroad v. Bosworth, 53 the 
 court argued that after confiscation the fee remained in abeyance, 
 and then, adopting a figure of shadowy personification, declared : 
 "It is not necessary to be overcurious about the intermediate state 
 in which the disembodied shade of naked ownership may have wan 
 dered during the period of its ambiguous existence. It is enough 
 to know that it was neither annihilated nor confiscated, nor appro 
 priated to any third party". The court then argued that the "naked 
 fee" subject to the usufruct of the purchaser under confiscation 
 proceedings, remained in the offender himself, though without any 
 power on his part to dispose of it. The next step was to maintain 
 that by reason of special pardon or general amnesty after the war, 
 the disability to dispose of the permanent title was removed. 
 
 Finally, in connection with an Ohio case in 1892, came the 
 practical reversal of the Wallach decision. 54 The property of one 
 Jenkins had been confiscated in 1863 and purchased by one Collard. 
 In 1865 Jenkins transferred to Collard all his interest and estate 
 in the property for a consideration of $18,000 accompanying the 
 
 "Avegne v. Schmidt, 113 U. S. 293; Shields v. Schiff, 124 U. S. 351. 
 "133 U. S. 92. 
 "145 U. S. 552. 
 
28 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 transaction with a covenant of general warranty 55 binding himself 
 and his heirs. The court was called upon to settle whether the title 
 thus conveyed was valid against the Jenkins heirs, or in other words 
 whether Jenkins could dispose of these reversionary rights. The 
 court summarized the earlier decisions and criticized at some length 
 the opinion in the Wallach case. The ground of the criticism was 
 that the ruling imposing on the offender the disability to transfer 
 the reversionary rights was based not upon any express provision 
 of the statute, but upon what the court thought the policy of con 
 fiscation to involve in other words, it was a piece of "court-made 
 law". Then, applying the law to the Jenkins case in the light of its 
 later judgment, the Supreme Court ruled that the offender, by his 
 covenant of warranty, could convey a permanent future assurance 
 of title which would hold good against all the claims of his heirs. 
 
 In effect this was of course a reversal of the rule set up in the 
 Wallach case. 56 A study of the steps taken in this whole series of 
 legal changes seems to reveal an increasing tendency toward a more 
 liberal interpretation of harsh statutes, while it suggests at the 
 same time the difficulty of consistently applying the confiscation acts 
 in the details of individual cases. 
 
 65 By issuing 1 a "covenant of warranty" the grantor assures the grantee that 
 he shall not at any future time be evicted by paramount title. Bouvier, Law 
 Dictionary. 
 
 58 If any mistake or fault can be attributed to the court, it probably con 
 sisted in taking an unnecessarily extreme position in the Wallach case. The 
 point in dispute could have been satisfied by merely ruling that at the time 
 of the transaction in question Wallach was disabled from conveying the fee, 
 and such a position would have been consistent with the later rulings. (For a 
 summary of all the decisions relating to this subject, see U. S. v. Dunnington, 
 146 U. S. 338.) 
 
VII. THE CONSTITUTIONALITY OF THE CONFIS 
 CATION ACTS 
 
 A PROBLEM more fundamental perhaps than any of the above 
 was that which concerned the constitutionality of the confiscation 
 acts. It was not surprising that this legislation which had been 
 enacted against the judgment of many of the ablest thinkers in Con 
 gress, which had barely escaped the presidential veto, and which had 
 occasioned the greatest uncertainty in its judicial enforcement, 
 should have to meet sooner or later that peculiar ordeal to which 
 all American laws are liable the test of constitutionality. The 
 wonder is that the test was deferred so long, for it was not until 
 1871 that the matter of constitutionality was made a direct issue 
 before the Supreme Court. The case was that of Miller v. United 
 States a proceeding under both of the confiscation acts to forfeit 
 certain shares of railroad stock in two Michigan corporations. 57 
 The information filed against this stock alleged it to be the property 
 of Samuel Miller, a Virginia "rebel". An essential feature of the 
 case was the fact that Miller had disregarded the notice and the 
 district court in Michigan, without a hearing of the case, had entered 
 a decree of condemnation by default. Miller s attorney complained 
 that the acts of Congress on which the seizure and the condemnation 
 by default had been based were unconstitutional, involving a viola 
 tion of the fifth and sixth amendments, which have to do with the 
 guarantees of due process of law and of property rights. 
 
 The court met the defendant s objections by a liberal reliance on 
 the "war power" and by reference to earlier decisions in which 
 related problems had been settled. The primary question of the 
 nature of the Civil War had been fully treated in the Prize Cases, 58 
 where the court had defined the conflict as one of sufficient magni 
 tude to give the United States all the rights and powers appropriate 
 to a foreign or national war. The belligerent rights of the United 
 States, then, were not diminished by the fact that the conflict was 
 a civil war. In the same decisions the relation of the Union govern 
 ment to the insurrectionary districts was dealt with, and the rights 
 both of a sovereign and a belligerent were held to belong to the 
 
 " 11 Wallace 304 ft. 
 " 2 Black 673. 
 
 (29) 
 
30 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 government of the United States. The court proceeded on the 
 basis of these previous decisions to analyze the confiscation acts and 
 defend their constitutionality. The most important problems before 
 the court under the head of constitutionality were: first, to decide 
 under what category to place confiscation, i. c., whether to regard 
 it as the exercise of war power or as a municipal regulation; and 
 second, to deal with the objection that the act violated the fifth and 
 sixth amendments relating to rights of property and of impartial 
 trial. As to the first of these problems the court laid down the 
 doctrine that the confiscation acts were not passed as a municipal 
 regulation but as a war measure. With a tone of certainty which, 
 as we have seen, the precedents hardly warranted, the court declared 
 that "this is and always has been an undoubted belligerent right". 
 Congress had "full power to provide for the seizure and confisca 
 tion of any property which the enemy or adherents of the enemy 
 could use for the purpose of maintaining the war against the gov 
 ernment". The act of 1861, and the fifth, sixth, and seventh sec 
 tions of the act of 1862, were therefore construed as an enforcement 
 of the belligerent rights which Congress amply possessed during the 
 Civil War. 
 
 Having thus placed the confiscation acts within the category of 
 war measures, the court found little difficulty in meeting the objec 
 tion that the acts involved a violation of the fifth and sixth amend 
 ments. The relevant provisions in these amendments are that no 
 person shall be deprived of his property without due process of law, 
 and that in all criminal prosecutions the accused shall enjoy the 
 right to a speedy and public trial by an impartial jury of the state 
 and district wherein the crime shall have been committed. The 
 acts, as we have above noted, permitted judgment on default with 
 out a jury trial, without a personal hearing, and without a deter 
 mination of the facts as to the guilt of the owner. It was admitted 
 by the court that if the purpose of the acts had been to punish 
 offenses against the sovereignty of the United States, i. e., if they 
 had been criminal statutes enacted under the municipal power of 
 Congress, there would have been force in the objection that Con 
 gress had disregarded its constitutional restrictions. Since, how 
 ever, the acts were passed in exercise of the war powers of the gov 
 ernment, they were held to be unaffected by the limitations fixed 
 by the fifth and sixth amendments. 
 
THE CONSTI1 LTIOXALITY OF THE CONFISCATION ACTS 31 
 
 Three of the judges, Field, Clifford, and Davis, dissented from 
 this opinion. Their grounds of disagreement were that the forfeit 
 ures in question were punitive in their nature, being based on the 
 municipal not the war power of Congress, that condemnations 
 must depend on the personal guilt of the owner, that judgments 
 against the property should only result from proceedings in rent to 
 ascertain the guilt or innocence of the supposed offender, and that 
 therefore a judgment based on mere default in such cases would 
 amount to a denial of "due process of law". These words of the 
 dissenting judges not only agree exactly with one of the important 
 points in Lincoln s objections, but they harmonize very well with 
 the position of the Supreme Court itself when dealing with the 
 problem whether a "rebel" should have a hearing. We noticed in 
 connection with the McVeigh case that the court insisted upon the 
 necessity of a hearing to determine the question of the owner s 
 alleged rebellion. The dissenting judges in the Miller case were 
 merely applying this same principle to the case of default. It was 
 not even necessary, said the majority of the court, to conduct an 
 ex partc hearing after the default. The entry of the default in due 
 form was to be regarded as establishing all the facts averred in the 
 information, as in the case of confession, or of actual conviction on 
 evidence. It was this principle which, according to the minority 
 view, would involve serious judicial usurpation, and "work a com 
 plete revolution in our criminal jurisprudence". To the thoughtful 
 student this view of the minority judges seems but a natural protest 
 against an extreme and unjust claim. The dissenting position 
 appears still stronger when it is remembered that the majority judges 
 admitted the incompetency of Congress to allow such judgments 
 as the confiscation acts permitted on the basis of municipal law, 
 and that the "war power" theory was the convenient door of escape 
 from this constitutional difficulty. 
 
 The above survey of legal problems may perhaps be sufficient to 
 suggest the difficulty and uncertainty with which the courts labored 
 in executing these measures of confiscation. It is often the case 
 with mooted points of law that the period of the greatest diversity 
 of opinion is alsa the period when the number of cases involved is 
 greatest, and when therefore the pressure upon the judicial authori 
 ties is heaviest. In the case of these legal difficulties regarding 
 
32 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 confiscation their final settlement did not occur until after the war; 
 in some cases so long afterward that the issue was practically dead, 
 and little benefit could be secured from the decisions as guides to 
 the lower tribunals. When during the war we find doubt on such 
 fundamental points as the constitutionality of the law itself, and 
 the question as to whether a rebel could be heard in his own defense, 
 we need no longer wonder that judicial action in these cases was so 
 often unsatisfactory. When in addition to this we remember that 
 during the war both Congress and the courts did their work under 
 heavy pressure, and sometimes in haste and confusion, we can 
 better understand such mistakes and shortcomings as appear in 
 connection with the execution of the confiscation policy. To carry 
 out a war measure by peaceful process is a rather anomalous under 
 taking, yet this is what the strict judicial enforcement of the con 
 fiscation policy amounted to. We must remember, too, that these 
 measures were exceptional, that they could be justified only on 
 extreme grounds, and that they touched human nature in a very 
 weak place. 
 
VIII. FORFEITURES UNDER THE DIRECT TAX LEVY 
 
 As closely related to the general subject of judicial forfeiture 
 we may include within our study a form of seizure which prac 
 tically amounted to confiscation, though carried out under legal 
 forms quite different from those of the confiscation acts. We refer 
 to seizures based upon an act of June 7, 1862, 59 "for the collection 
 of direct taxes in insurrectionary districts within the United States". 
 An earlier statute, that of August 5, 1861, 60 providing for a direct 
 tax to secure war revenue, had apportioned quotas to all the states, 
 including those in insurrection. It was now enacted that in those 
 states or districts where this act could not be peaceably executed, 
 special tax commissioners should be appointed by the President 
 who, as soon as the military authority of the United States could 
 be established, should make assessments "upon all the lands and 
 lots of ground" situated in the insurrectionary territory. This 
 assessment was to be based upon the real estate valuation in force 
 in 1861. A penalty of fifty percent of the tax proper was made 
 an additional charge upon these lands. Upon default of the owners 
 to pay the tax, the land was to be forfeited to the United States, 
 and the commissioners in that case were to conduct public "tax 
 sales", selling to the highest bidder, or bidding in the property for 
 the United States. The tax sale certificate of the commissioners 
 was to be sufficient to convey a title in fee simple to the land, free 
 from all encumbrances. 
 
 Commissioners were appointed in accordance with this statute 
 for each of the eleven insurrectionary states. It was not possible, 
 of course, for the act to be carried out uniformly throughout the 
 South. Only in those districts where the Union forces maintained 
 some foothold could these tax sales be conducted. The following 
 table indicates the extent of this partial enforcement of the law : 
 
 69 Stat. at Large, XII., 422. 
 *Ibid, 294 foil. 
 
 (33) 
 
34 THE; CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 PROCEEDS OF SALES BY UNITED STATES TAX COMMISSIONERS 
 
 FOR NON-PAYMENT OF THE DIRECT TAX 
 
 OF AUGUST 5, 1861. 61 
 
 Virginia $113,130.57 
 
 South Carolina 370,000.00 
 
 Florida 64,705.87 
 
 Arkansas 48,067.24 
 
 Tennessee 101,970.52 
 
 The Union government could hardly have devised a measure 
 more odious to the people of the South. The levy of a federal tax 
 directly upon particular plots of ground in regions where ideas of 
 states rights were so strong as in the Southern states was par 
 ticularly distasteful, and the fact that this method was not adopted 
 in the North made the partiality of the measure the more apparent. 
 The tax collector of the enemy s government was thus brought into 
 immediate relations with the helpless citizens of those portions of 
 the South which fell into Union possession, and this unfortunate 
 situation naturally awakened the deepest resentment. Objection 
 was made that in view of the added penalty of fifty percent, re 
 quired only in the insurrectionary states, the tax was not propor 
 tionately levied, and was therefore unconstitutional. In dealing with 
 this objection the Supreme Court held that the fifty percent penalty 
 was no part of the tax, but was a fine "for default of voluntary 
 payment in due time". The validity of the tax under the consti 
 tution was therefore upheld. 
 
 Various objections were also urged against the special features 
 of the act by which it differed from ordinary provisions for tax 
 sales. A valuable estate, for instance, would be sold to pay a trifling 
 tax, and the surplus over and above the tax, instead of being paid 
 to the owner, as in the usual tax sale, was turned into the United 
 States treasury. Moreover the customary privilege of redemption 
 which belongs to the dispossessed owner in the ordinary tax sale, 
 was denied. Whatever this sort of proceeding might be called, it 
 is clear that its effect was confiscation. In some cases commissioners 
 required the owners to pay the tax in person, which was often an 
 impossibility. The question was significantly raised whether these 
 
 61 Cong. Globe, 42 Cong., 2 sess., p. 3387. 
 
FORFEITURE UNDER THE DIRECT TAX LEVY 35 
 
 extraordinary discriminations were consistent with the constitution, 
 and whether such a form of procedure could be called "due process 
 of law". Even granting that the federal government had any 
 claims to sovereignty in the South which would justify the levying 
 of a tax upon them during the rebellion, it is difficult to see how 
 these sweeping forfeitures can be defended on the ground of "tax 
 sales". 
 
 The most notable instance of seizure under the direct tax legis 
 lation was the case of the famous Arlington estate in Virginia, be 
 longing to General Robert E. Lee. 62 A tax amounting to $92.07 
 was levied upon this estate, and in September, 1863, the whole 
 property was sold for its non-payment. The tax commissioners 
 bid in part of the estate for the federal government at $26,800. For 
 other portions of the estate there were various other purchasers. 
 The grounds acquired by the government were made into a national 
 cemetery for the graves of Union soldiers. 
 
 After the death of Mrs. Robert E. Lee, her son, G. W. P. C. 
 Lee, claiming to have valid title to Arlington, petitioned Congress 
 to vote compensation to him in return for which he would yield all 
 his rights in the property and avoid litigation for its recovery. 63 
 He based his claim on the ground that the sale of the property by 
 the commissioners amounted to confiscation, and could not be held 
 valid. The extraordinary measures adopted to enforce the tax were, 
 he argued, unconstitutional. Instead of the sale of only so much 
 of the property as was necessary to pay the tax with interest and 
 penalties, the whole estate was forfeited to the United States and 
 sold. In this case the amount of the tax had actually been offered 
 by Mrs. Lee through her agent, but the commissioners had refused 
 to accept such payment, and the petitioner declared that this re 
 fusal rendered the whole proceeding void. Further, it was urged, 
 that the United States could not in justice secure more than a life 
 interest, and that the national legislature could not acquire juris 
 diction over this estate without the consent of Virginia. This 
 petition was referred to the Committee on Judiciary, and was not 
 heard of further. 64 
 
 82 J. K. Hosmer refers to the seizure of Arlington as if it were a case under 
 the Confiscation Act itself. As a matter of fact, no process of confiscation, as 
 such, was undertaken. Hosmer, Appeal to Arms, (Am. Nation, vol. 20), p. 172. 
 
 * Sen. Misc. Doc. 43 Cong., 1 sess., No. 96. 
 
 M Cong. Record, 43 Cong., 1 sess., vol. II., pt. 3, p. 2812. 
 
36 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 The next phase of this case was a suit brought first in the United 
 States circuit court in Alexandria, Virginia, and later appealed to 
 the Supreme Court, in which the title of the United States under 
 the tax sale certificate was contested. The decision in the case of 
 United States v. Lee is long and technical. 65 The lower court had 
 declared Lee s title valid, and this decision was affirmed. The argu 
 ments of the court, however, did not attack the validity of this 
 general class of tax sales; it was rather the conduct of these par 
 ticular commissioners which was denounced. In spite of the prin 
 ciple that the United States cannot be sued without its consent 
 it was held that action could properly be brought against persons 
 whose acts as agents of the United States might interfere in an 
 unwarranted way with individual property rights. Since in this 
 case the commissioners had established the rule that owners must 
 pay the tax in person, payment was thus made impossible in the 
 majority of cases, and where the amount of the tax had been ten 
 dered through an agent and refused, no proceedings could be legally 
 begun which depended upon the voluntary default of the owner 
 to pay the tax. Any tax sale certificate secured under such regu 
 lations was therefore held to be invalid. 
 
 In view of this decision an appropriation became necessary in 
 order to establish the title of the United States to the Arlington 
 cemetery. 66 The matter was finally settled by the payment of 
 $150,000 as compensation to the Lee heirs, in return for which 
 a release of all claims against the property was secured. 67 
 
 The direct tax seizures in South Carolina illustrate further the 
 inequalities which were inherent in this form of proceeding. 68 The 
 operations of the tax commissioners were confined to a few parishes 
 in the eastern portion of the state, but assessments were based upon 
 a uniform apportionment of the quota throughout the whole state. 
 The total quota for South Carolina was $363,570.66. The commis 
 sioners collected $210,789.32 as taxes, and $28,232 as proceeds of 
 sales for non-payment of the direct tax. Besides this, considerable 
 profit was secured to the government by the disposition of such 
 property as was bid in for the United States by the commissioners 
 
 65 106 U. S. 196. 
 
 Cong. Record, 47 Cong., 2 sess., vol. xiv, pt. 3, p. 2680. 
 
 87 March 3, 1883. 17. 8. Statutes, 47 Cong., 2 sess., ch. 141, p. 584 ; Cong. 
 Record, 47 Cong., 2 sess., vol. xiv, pt. 4, p. 3661. 
 
 88 House Doc. 45 Cong., 3 sess., no. 101. 
 
FORFEITURE UNDER THE DIRECT TAX LEVY 37 
 
 at the tax sales instead of being sold to private purchasers. Part 
 of such property was held by the government and rented ; part was 
 sold to loyal citizens; part was purchased by soldiers, and part was 
 sold to heads of families. The proceeds of these various trans 
 actions, added to the amount actually collected as taxes, or secured 
 from original sales for non-payment, yielded an approximate sum 
 of $512,338, which exceeded the original quota of the whole state 
 by $148,768. It will thus be seen that though the tax was enforced 
 in only a portion of the state, yet the total proceeds derived by the 
 government from all the various transactions connected with the 
 collection of the tax were far in excess of the state s full quota. It 
 might well be claimed, therefore, that a double inequality was in 
 volved ; a portion of the citizens were made to pay while others went 
 free, and the state as a whole was bearing more than its propor 
 tionate share of the "tax". 
 
 There was, moreover, in the case of two parishes, those of St. 
 Luke s and St. Helena, a still further hardship. 69 Here there was 
 a general failure of the owners to appear and pay the tax, and the 
 commissioners disposed of a large quantity of land at public auction 
 at a very low price. Most of this land was not acquired by private 
 parties, but was bid in for the government by the commissioners, 
 and later the property was sold to the former owners for amounts 
 greatly in excess of the sums at which the commissioners had bid 
 in the property for the United States. In one case a lot bid in at 
 $100 was later resold to its former owner for $2,600. Judge Nott 
 of the Court of Claims characterized this divestiture of property as 
 "exceedingly pitiable", and attributed such a policy to the harsher 
 judgments of the war". 
 
 These, we may remark, are effects of the direct tax which have 
 been generally overlooked, since the chief attention of the national 
 Congress has been given to the heavy share of the tax sustained by 
 the "loyal" states as compared with the "insurrectionary" states. 
 With these larger phases of the question which have become a 
 matter of familiar history, we are not at present concerned, since 
 the subject comes under our notice not as a tax, but as involving 
 an unequal and oppressive kind of forfeiture which amounted to 
 virtual confiscation. 
 
 69 House Doc. 45 Cong., 3 sess., no. 101, p. 2. 
 
38 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 Although various attempts were made to secure legislation ad 
 justing the many inequalities which resulted from the direct tax 
 of the Civil War, nothing was done along this line until March 2, 
 1891, when an act was passed providing for a refunding of the 
 amounts paid by the several states and territories under the direct 
 tax of August 5, 1861. 70 So far as restitution was possible for the 
 forfeitures of which we have been speaking in this chapter, they were 
 provided in this act. Special provision was made for compensat 
 ing those who lost their lands in South Carolina, and a general 
 repayment was provided for the benefit of all owners in any state, 
 whose lands had been bid in and sold under the provisions for 
 collecting this tax. Jurisdiction was given to the Court of Claims 
 over cases arising under these provisions for restitution, and its 
 decisions were fairly liberal, but such tardy restorations could, of 
 course, only partially undo the effect of the original forfeitures. 71 
 
 70 26 Stat. at Large, 822. 
 
 71 The following are examples of such decisions : Chaplin v. U. S., Ct. Cl. 
 Rep. 29, p. 231 ; Glover et al. v. U. S. Ibid, p. 236 ; Means v. U. S. Ct. Cl. Rep. 
 31, p. 245; Hogarth v. U. S. Ct. Cl. Rep. 30, p. 346. 
 
IX. CAPTURED AND ABANDONED PROPERTY 
 
 WE have so far been confining our attention to cases of confisca 
 tion by judicial action. It should be remembered, however, that the 
 two specific laws of confiscation, providing for the judicial seizure 
 of "rebel" property in federal courts, formed only an ineffective 
 part of a larger policy of virtual confiscation which contemplated 
 the employment of an elaborate machinery for appropriating the 
 goods of the enemy. In the previous section on the direct tax we 
 noticed one important form of virtual confiscation, and we now 
 turn to another and more sweeping system of appropriating prop 
 erty which was non- judicial in character. 
 
 The confiscation acts involved the prosecution of suits in federal 
 district courts, and this was obviously impossible in insurrectionary 
 districts where no such courts were in operation, and where peaceful 
 judicial process was impracticable, even though the Union forces 
 might be in occupation of the territory. It was to be expected, 
 however, that as the federal armies advanced they would make cap 
 tures of large amounts of private property, especially cotton, and 
 that there would be left in their train estates and miscellaneous 
 property which had been abandoned by the owners. Much of this 
 property would necessarily be of such a nature that the military 
 authorities could not dispose of it, and unless some action were 
 taken it would be left without ownership. It was also thought 
 desirable to encourage the capture of some of the staple products 
 of the South, not for direct military use, but as a means of re 
 ducing the enemy s resources, and adding to the resources of the 
 Union government. 
 
 To meet this situation Congress passed, March 12, 1863, the act II 
 relating to "captured and abandoned property". 72 Under this law " 
 the Secretary of the Treasury was to appoint special agents to collect 
 property of this kind in the insurrectionary territory. The agents 
 were to have nothing to do with property used for waging war, 
 
 72 Statutes at Large, XII., 820. According to an opinion submitted to the 
 Treasury Department by Attorney-General Speed, July 5, 1865, property hos- 
 tilely seized by the military authorities on land was to be regarded as "cap 
 tured", while the term "abandoned" was held to apply to property "whose owner 
 shall be voluntarily absent and engaged in, aiding, or encouraging, the rebel 
 lion". Sen. Doc. 40 Cong., 2 sess., no. 22 ; U. S. v. Padelford, 9 Wallace 531. 
 
 (39) 
 
40 THE; CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 such as arms, ordnance, ships, etc., nor were they to have any au 
 thority over maritime prizes. The property thus collected was 
 either to be devoted to public use on due appraisement and cer 
 tificate, or to be forwarded to some place of sale in a loyal state, 
 (and the proceeds turned into the treasury. Provision was made in 
 the law for restoration to loyal owners after the war. 
 
 This act of Congress was essentially an exercise of the belligerent 
 right of confiscation, in a form different from that of the confisca 
 tion acts, and applying to property which the latter could not touch. 
 The competence belonged to Congress, according to the Supreme 
 Court, to provide for the forfeiture of the property of all persons 
 within the Confederacy, loyal as well as disloyal, on the principle 
 that all inhabitants of enemy territory are enemies. 73 This, how 
 ever, would have been an extreme measure, and the restoration of 
 the property of loyal citizens was therefore provided for, but in 
 
 1 doing so, Congress \vas renouncing a part of its strict belligerent 
 
 I rights as the Supreme Court understood them. 74 
 
 The Treasury Department proceeded vigorously in carrying out 
 the provisions of this law, and soon developed an elaborate admin 
 istrative machinery for collecting and marketing captured prop 
 erty. 75 A general agent was given charge of the whole work, under 
 whom was placed a large corps of supervising agents and local 
 agents, who were in turn assisted by "agency aids", and customs 
 officers specially designated for this work by the Secretary of the 
 Treasury. 
 
 This army of treasury officials which was thus set upon the 
 trail of captured property in the South did not find their chase a 
 holiday pastime. 76 Even though within the Union lines, they found 
 
 73 Young v. U. S., 97 U. S. 396 ; U. S. v. Winchester, 99 U. S. 372, at p. 375. 
 
 74 Briggs v. U. S., 143 U. S. 346, at p. 356. 
 
 75 Secretary Fessenden s Circular of Instructions concerning commercial 
 intercourse, and captured and abandoned property, July 29, 1864. The first 
 stages of the work of enforcing the Captured Property Act are discussed in 
 Finance Report 1863, pp. 23-24. 
 
 78 A general description of the methods used in collecting captured property 
 is to be found in Secretary McCulloch s report, Nov. 8, 1866, House Ex. Doc. 
 39 Cong., 2 sess., no. 97. To secure unpublished material concerning the opera 
 tions of the treasury officials, search has been made in the files of the Miscel 
 laneous Division of the Treasury Department, where the records concerning 
 captured property are deposited. Here much testimony, more or less reliable, 
 is to be found in the form of affidavits, financial certificates, and official 
 reports. This material is the chief source of the data upon which this section 
 is based. 
 
CAPTURED AND ABANDONED PROPERTY 41 
 
 that they were in the enemy s country, and that the inhabitants had 
 either deserted or were hostile to the removal of property. Cases 
 of personal injury to the officials were frequent enough to render 
 the work highly dangerous. Marks and other evidences of the 
 character and ownership of the cotton were often destroyed, and 
 cotton was often hauled to the woods or swamps and concealed in 
 advance of the agent s arrival, or in cases where this was impos 
 sible, it was frequently burned. Agents of the Confederate gov 
 ernment were at the same time abroad through the South collecting 
 cotton, and this complicated the work of the Union officials, while 
 it increased the tendency to evasion on the part of private owners. 77 
 Naturally much of the cotton so collected was in unfit condition, and 
 needed overhauling and rebaling before being placed on the market. 
 Above this difficulty, there still remained the danger of secret raids 
 upon the government depots, resulting in the theft or demolition of 
 the cotton, or perhaps the substitution of an inferior grade for that 
 contained in the government store. Sales were required to be con 
 ducted in the loyal states, but a serious obstacle to this plan was the 
 lack of sufficient means of transportation. Naturally the chief con 
 cern of the quartermasters in the field was the forwarding of sup 
 plies to the army, and they showed little zeal in co-operating with 
 the treasury agents for the removal of captured property. 
 
 Because of the perilous character of this work of bringing in 
 property from the insurrectionary districts, the government offered 
 large inducements to private individuals who would undergo the 
 necessary risks. Treasury officials offered to pay 25 percent of the 
 proceeds to any who \vould bale up and bring in cotton and deliver 
 it to the agent at one of the shipping ports. This form of contract 
 did not authorize purchases within the Confederate lines. 78 A 
 
 " It is well known that considerable cotton was burned by the Confederate 
 authorities to prevent it from falling into the hands of the Union government. 
 Among the Confederate cotton records, in charge of the Miscellaneous Division 
 of the Treasury Department, is a book containing the names of persons who 
 had made claims on the Confederate treasury for cotton destroyed by their 
 own forces, among whom was President Jefferson Davis who made claim for 
 two hundred bales burned. The following are published documents dealing 
 with this general subject : Report of A. Roane, Chief of Confederate Produce 
 Loan Office, House Misc. Doc. 40 Cong., 1 sess., no. 190, p. 39 ; Report of De- 
 Bow, General Confederate Cotton Agent, Ibid; Treas. Dept. Circular, Jan. 9, 
 1900, no. 4. See also account of the facts in Mrs. Alexander s Cotton, 2 Wal 
 lace 405. 
 
 "House Ex. Doc. 39 Cong., 2 sess., no. 97, p. 3 ; U. S. v. Lane, 8 Wallace 185. 
 
42 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 peculiar kind of executive permit, however, was issued by President 
 Lincoln which authorized the holder, even over the protest of the 
 military authorities, to pass through the lines and seize property in 
 the insurrectionary districts, the licensee being allowed to keep 
 three-fourths of the proceeds. 79 After Lincoln s death, some of the 
 licensees were deprived of the property, and the proceeds were put 
 into the treasury. The Supreme Court decided that the President 
 had no power to make these contracts, since they were in violation 
 of the non-intercourse acts. 80 Wherever purchases were made be 
 yond the lines of military occupation of the federal forces they 
 were outlawed. Later, however, Congress by a special act came 
 to the relief of claimants who were thus dispossessed. 
 
 As might be expected, this system of collecting property pro 
 duced many irregularities and cases of fraud. Individuals under 
 contract to collect and deliver cotton to a Union agent would often 
 seize property which they had no right to touch, or would collect 
 heavy bales of good quality and turn over to the government light 
 bales of poor quality. Residents in some cases represented them 
 selves as agents for the Union government, and simply robbed under 
 this pretended authority, not condescending to show by what right 
 they made their seizures. Agents themselves blundered at times 
 because of a misunderstanding of their duties, or committed out 
 rages in deliberate dishonesty. The unscrupulous agent, of course, 
 had exceptional opportunities for gain. In the process of repacking, 
 large quantities of cotton might be abstracted and disposed of at 
 private sale. False reports might be submitted, thus concealing the 
 true amount received. Immediate supervision might be evaded by 
 the pretext of direct orders from Washington to dispose of the 
 cotton in some other way than through the office of the next superior 
 agent. In certain districts, military authorities were implicated in 
 defrauding the government, and in such a situation, lawless bands 
 of thieves were encouraged while good citizens were intimidated. 
 
 Considering these difficulties, the Captured Property Act was 
 extensively enforced. As reported officially in May, 1868, the gross 
 proceeds from the sale of cotton were $29,518,041, and the gross 
 
 79 Report of House Com. on Judiciary, House Reports, 45 Cong., 3 sess., no. 
 83. In the case of U. S. v. 129 Packages, 27 Fed. Cas. 284, such a permit was 
 used fraudulently to ship whiskey into a Union camp. 
 
 80 Ouachita Cotton Case, 6 Wallace, 521; McKee v. U. S., 8 Wallace 163. 
 
CAPTURED AND ABANDONED PROPERTY 43 
 
 proceeds from miscellaneous property, $1,309,650. The net total 
 of captured and abandoned property was $25,257,93 1. 81 
 
 It will be seen that over ninety-five percent of the property 
 handled by the treasury agents was cotton. It is not hard to under 
 stand why this important commodity was so eagerly sought by the 
 Union authorities. Being the greatest staple product of the South, 
 it was regarded as their most valuable source of wealth, and was 
 held to contribute so directly to the support of the rebellion that it 
 should not be regarded in the same light as ordinary private prop 
 erty. It was declared by the Supreme Court to be a proper subject I 
 for capture by the Union authorities during the Civil War, and not I 
 to be protected by the general rule of international law which con- j 
 demns the seizure of private property on land. 82 
 
 n Sen. Ex. Doc. 40 Cong., 2 sess., no. 56, p. 52. 
 
 "Mrs. Alexander s Cotton, 2 Wallace 404 ; Briggs v. U. S., 143 U. S. 346, 357 ; 
 Whitfield v. U. S. 92 U. S. 165. In the last case the court declared that cotton 
 was "during the late war, as much hostile property as the military supplies 
 and munitions it was used to obtain". 
 
X. THE ADMINISTRATION OF ABANDONED ESTATES 
 
 THE control of deserted houses and plantations was one of the 
 important problems involved in the execution of the Captured and 
 Abandoned Property Act. Property whose owner was absent in 
 aid of the insurrection was legally regarded as "abandoned", and 
 was given over to the jurisdiction of the Treasury Department. 83 
 No attempt was made to disturb the title to this deserted property, 
 some of which, in sipte of the legal definition, was understood to 
 belong to loyal owners; it was merely held under the temporary 
 control of the Union officials, ready to be returned to its owners 
 after the war in the event of their loyalty being proved, or to be 
 confiscated if owned by a "rebel". The property was ordinarily put 
 in the hands of tenants who engaged to cultivate it, but in some 
 cases, especially in towns, it was appropriated to the relief of needy 
 applicants who could show both poverty and loyalty. 
 
 The machinery for administering these abandoned estates, as 
 illustrated by the case of Louisiana, 84 involved a plantation bureau 
 at New Orleans, in charge of a "Superintendent of Plantations" 
 under whom was placed a corps of agents and inspectors whose 
 function it was to keep the central office in touch with the large 
 number of lessees and occupants to whom the estates were leased 
 or granted. The rents and proceeds derived from this period of 
 temporary control were appropriated by the government, and turned 
 in as a part of the captured and abandoned property "fund". 
 
 The disturbance of the ordinary conditions of life which is 
 incidental to warfare, was nowhere more strikingly revealed than in 
 connection with this system of operating deserted plantations. 
 Neglect of improvements, dilapidation of buildings, and deteriora 
 tion due to inexperienced farming were everywhere evident. The 
 lessee s interest naturally extended only to the harvesting of the im- 
 
 83 Stat. at Large, XII, 820, sec. 1 ; XIII, 375. 
 
 84 The records of these transactions are deposited in the archives of the 
 Treasury Department at Washington, in charge of the Miscellaneous Division. 
 The following titles will indicate the nature of this unpublished material : List 
 of Plantations transferred to the Treasury Department, third agency, by S. B. 
 Holabird, Col. and Chief Quartermaster, Dept. of Gulf, Oct. 1, 1863 ; Plantation 
 Inventories, Bk. no. 74 ; Plantation Bureau Records, containing inspectors 
 reports, Bk. no. 72. 
 
 (44) 
 
THE ADMINISTRATION OF ABANDONED ESTATES 45 
 
 mediate crop, and this object was furthered in disregard of the per 
 manent up-keep of the property. Several plantations might at times 
 be in control of one individual or firm and this led to the transfer 
 and indiscriminate mixture of movable property which should have 
 been localized in particular estates. The negroes, suddenly shifted 
 to a free status and to a system of lax discipline, became unruly and 
 faithless to contract. Offers of higher wages or easier work would 
 readily seduce them from one plantation to another and such a 
 departure of laborers might occasion the loss of a whole crop. 
 Trouble arose also because of the "hands" claiming the right to 
 plant cotton or anything else in their respective patches regardless 
 of the requirements of the overseers. All of these difficulties of 
 management were enhanced by the military authorities who caused 
 constant annoyance by deporting mules without compensation, 
 issuing full rations to idle negroes, and enrolling the "hands" as 
 "contraband troops". It sometimes happened that a plantation might 
 be occupied for months as a camp or a recruiting station, making 
 successful cultivation impossible. 
 
 It is clear that this whole system, in its essential features, 
 amounted to temporary confiscation. The government based its 
 claim to the proceeds of "captured" property and the revenue from 
 deserted property during the period of its abandonment, upon the 
 owner s disloyalty. In the measures adopted after the war, how 
 ever, the hardships caused by confiscation in its various forms were 
 considerably mitigated, and this was especially true of the seizures 
 made under the Captured Property Act. Seizure in these cases did 
 not involve final condemnation, since the statute itself contemplated 
 relief to all "loyal" claimants who would, within two years after 
 the close of the war, prove their right before the Court of Claims. 
 In addition, the executive policy of unconditional pardon and gen 
 eral amnesty adopted after the war, removed finally all distinction 
 between "loyal" and "disloyal" owners, and required the restora 
 tion, so far as practicable, of all forfeited property rights. 
 
XI. THE RESTORATION OF PROPERTY 
 
 IN treating the question of restorations as affecting forfeited 
 property certain incidental methods will be briefly examined, and 
 then the work of the Court of Claims will be somewhat more fully 
 considered. 85 Both during and after the war we find that direct 
 
 85 It will perhaps be in order to give at this point a brief explanation of the 
 effect of pardon upon confiscated property. The first pardon proclamation of 
 President Lincoln, and the first three of President Johnson contained various 
 exceptions and conditions, among which were provisions that confiscated prop 
 erty should not be returned. Finally, however, a proclamation of December 25, 
 1868, declared an unconditional pardon without the requirement of an oath, 
 and without reservation as to forfeited property rights. So far as the execu 
 tive policy is concerned, there seems to have been no very definite program 
 touching the effect of pardon upon proceedings and judgments under the Con 
 fiscation Acts. Attorney-General Speed s first official utterance on the subject, 
 issued in the form of instructions to district attorneys in May, 1865, directed the 
 discontinuance of confiscation proceedings, but these orders were later revoked, 
 and district attorneys were directed to press cases forward to an early determi 
 nation. In the order of President Johnson regarding the re-establishment of the 
 authority of the United States in Virginia after the close of the war, we find 
 the following: "The Attorney-General will instruct the proper officials to libel 
 and bring to judgment, confiscation, and sale, property subject to confiscation, and 
 enforce the administration of justice within said stated. In accordance with 
 this order. Speed directed District Attorney Chandler to see that the appropriate 
 officials were instructed to perform their duties as the President directed. Letter 
 Books of the Department of Justice, 1865 and 1866 ; Exec. Order, May 9, 1865, 
 Offic. Rec., third series, V, p. 14. The problem was ultimately disposed of by 
 the Supreme Court in a series of decisions. As regards the first confiscation 
 act the question was decided in 1867 in the case of Armstrong s Foundry, 6 
 Wallace 766, where the court held that the statute regarded the owner s con 
 sent to the hostile use of the property as an offense of which confiscation was 
 the penalty, hence pardon would restore to the claimant that portion of the 
 proceeds which went to the government, no opinion being expressed as to the 
 informer s share. A different and somewhat confusing line of interpretation 
 was followed in the case of the act of 1862, for here the court declared that 
 not even universal amnesty could restore the lost property rights. The court 
 argued that the second confiscation act was passed in exercise of belligerent 
 rights, not for the punishment of treason, hence pardon of the traitor could 
 not relieve him of the forfeiture. It was further maintained that property 
 which had been sold to a purchaser in good faith and for value could not be 
 interfered with, and that the proceeds deposited In the treasury were beyond 
 the reach of judicial action, since Congress alone has power to reappropriate 
 money covered into the treasury. Semmes v. U. S., 91 U. S. 27 ; Knote v. U. S., 
 95 U. S. 149. The judicial interpretation of the two acts is, in fact, some 
 what puzzling, and it does not appear that any broad underlying principles 
 were consistently adhered to. In the case of the act of 1861 the whole title in 
 fee was held to be surrendered on the ground that the proceeding was merely 
 against the property, but the pardoned owner was as we have just seen entitled 
 to that share of the proceeds which went to the government. In seizures under 
 the act of 1862 the life interest only was forfeited, thus at least partly recog 
 nizing the confiscation as a penalty for a criminal offense, but no recovery could 
 be secured by reason of pardon. Moreover, in the very brief opinion in the 
 case of Armstrong s Foundry nothing is said about the exclusive right of 
 Congress to control the appropriation of money from the treasury, though in 
 the case of Knote v. United States, this was made one of the chief grounds for 
 refusing restoration. 
 
 (46) 
 
THE RESTORATION* OF PROPERTY 47 
 
 methods of release were followed which disregarded, in some 
 measure, the statutory jurisdiction of the Court of Claims over these 
 cases. Quartermasters at times released property secured by mili 
 tary seizure before it had passed to the treasury officials. The 
 Secretary of the Treasury, who was continually beset with appeals 
 concerning erroneous seizures, exercised regularly during the war 
 the judicial function of allowing releases if convinced of the bona 
 fide character of the applicants. 86 This policy he continued for 
 some months after the war, until, by an opinion of the Attorney- 
 General, these cases were all referred to, the Court of Claims. 
 
 Another important agency concerned in the restoration of prop 
 erty was the Bureau of Refugees, Freedmen and Abandoned 
 Lands. This institution was created by Congress, March 3, 1865, 
 to provide protection and support for emancipated negroes, and to 
 it control of confiscated, captured, and abandoned real property was 
 entrusted. 87 Estates which had been administered on a lease system 
 by treasury agents were placed in charge of the bureau as was 
 also property seized for judicial confiscation but not actually con 
 demned, and a miscellaneous class of property in the hands of mili 
 tary authorities at the close of the war. The original intention was 
 that deserted lands should be allotted in small holdings to indi 
 vidual freedmen, and, in South Carolina and Georgia, some land 
 was actually assigned. In general, however, the bureau either used 
 its land for colonies of freedmen, or continued the lease system in 
 order to make its property productive of revenue. 
 
 At first the bureau adopted a cautious policy regarding restora 
 tions, and declined all applications not supported by proof of past 
 as well as present loyalty. By President Johnson s order in August, 
 1865, however, the bureau was instructed to return the property 
 of all who were included in the partial amnesty proclamations of 
 that year, or who, if excluded from these proclamations, could show 
 certificates of special pardon. As a result of these instructions, 
 the bureau was compelled to part with the greater portion of the 
 property once under its control, and the plan of allotment to freed 
 men was defeated because of the uncertainty of tenure applying 
 
 * The actual adjudication of these claims rested in fact with the local agent ; 
 that is, he would send in the papers with his recommendation for the Secre 
 tary s action. Report of Sec. McCulloch, Sen. Ex. Doc. 40 Cong.. 2 sess., no. 22. 
 
 " Stat. at Large, XIII, 507. 
 
48 THE; CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 to the bureau s holdings. A report of Commissioner Howard shows 
 that the officers of the bureau restored 15,452 acres of land seized 
 under the second confiscation act; 14,652 acres received as aban 
 doned and allotted to freedmen, and 400,000 acres of abandoned 
 property which had never been allotted. Thus the total restora 
 tions amounted to 430,104 acres. 88 
 
 88 After President Johnson s order the rules followed by the bureau in con 
 nection with these restorations were that land should not be regarded as confis 
 cated until condemned and sold by a federal court ; that property not properly 
 considered abandoned or confiscated should be surrendered to claimants ; that 
 property be restored to pardoned "rebels", and that restoration of land under 
 cultivation be conditioned upon the payment by the claimant of an amount 
 sufficient to compensate loyal refugees for their labor in working the lands. 
 For the action of the Freedmen s Bureau regarding property see : General 
 Order, War Dept. no. 110, Offic. Rec. third series, V, 51; Reports of Gen l O. O. 
 Howard, Com r, House Ex. Doc. 39 Cong., 1 sess., no. 11 ; House Misc. Doc. 38 
 Cong., 1 sess., no. 78 ; House Ex. Doc. 39 Cong., 1 sess., no. 19 ; Ibid, no. 99 ; 
 Peirce, The Freedmen s Bureau, 21, 22, 24. 
 
XII. RESTORATIONS BY THE COURT OF CLAIMS 
 
 The incidental methods of restoring property noted in the forego 
 ing section, were all subordinate to the work of the Court of Claims 
 the regularly designated tribunal for adjudicating cases of cap 
 tured and abandoned property, and the only agency by which the 
 grounds of release were subjected to a strictly judicial determina 
 tion. In dealing with these cases the Court of Claims followed, 
 not too rigidly, the terms of the various statutes involved, 89 and 
 introduced certain rules of its own making. The claimant was 
 required to show that he was the owner of the property claimed and 
 that he had never given aid or comfort to the rebellion. The govern 
 ment was not to be loaded with the burden of proving disloyalty. 
 Voluntary residence in an insurrectionary district was taken as 
 prima facie evidence of a rebellious character, and this must be re 
 butted by satisfactory testimony covering the whole period of the 
 war, and showing that no act of sympathy to the Confederate move 
 ment had been willingly performed. 
 
 The Court of Claims thus became the tribunal for judging the 
 facts as to the conduct of thousands of professed Unionists in the 
 South, and its hearings assumed somewhat the character of a 
 judgment day proceeding, where, after the deeds of all had been 
 laid bare, the faithful were rewarded and the rebellious turned 
 away. The voluminous testimony which the court examined con 
 stitutes perahaps the best body of material revealing in detail the 
 conduct of "loyal" Southerners, and for the historian who takes up 
 the study of the Civil War loyalists it will have somewhat the same 
 
 89 The following provision for the reclamation of property was included in 
 the Captured and Abandoned Property Act : "Any person claiming to have been 
 the owner of any such captured or abandoned property may, at any time 
 within two years after the suppression of the rebellion, prefer his claim to the 
 proceeds thereof In the Court of Claims ; and, on proof to the satisfaction of 
 said Court of his ownership of said property, of his right to the proceeds 
 thereof, and that he has never given any aid or comfort to the present rebel 
 lion, may receive the residue of such proceeds after the deduction of any pur 
 chase money which may have been paid, together with the expense of trans 
 portation and sale of such property and any other lawful expenses attending 
 the disposition thereof". Stat. at Large, XII, 820, Sec. 3. By a further enact 
 ment of July 27, 1868, the remedy thus given was declared to be exclusive, 
 precluding the claimant from "suit at common law, or any other mode of 
 redress whatever". Ibid. XV, 243, Sec. 3. 
 
 (49) 
 
50 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 value as the papers of the New York royal commission had for 
 the study of the corresponding topic in the Revolutionary War. 90 
 
 Men and women of Union sympathies, as this testimony shows, 
 were scattered in considerable number throughout the South. Sur 
 rounded as they were by a repressing and persecuting majority, 
 they naturally found it difficult to express their loyalty in any 
 active, organized form. They had to be content, therefore, with a 
 negative attitude, a sort of "passive resistance", refusing to take 
 any voluntary measures against the government at Washington, 
 and performing individual acts of friendship to the Union cause. 
 We find them resisting the Confederate draft, carrying provisions 
 and medicine to the Union soldiers, contributing funds for helping 
 the "blue-coats", attending the boys in the hospitals, and in other 
 equally mild ways promoting the Union cause. 
 
 This "loyalty", which meant simply treason from the stand 
 point of southern communities and neighborhoods, naturally in 
 curred local persecution, and the Unionist of the South moved con 
 stantly in an atmosphere of scorn and prejudice, and was continually 
 disturbed by threats of personal violence. Furthermore, he was 
 often compelled against his will to give some support to the southern 
 cause. It was an exceptional Unionist indeed who was not pressed 
 into the conscript lines, or compelled to subscribe to a Confederate 
 loan, or forced to labor on entrenchments, and in addition to all 
 this he must of course pay taxes into the "rebel" treasury, how 
 ever loud might be his protest. Children even caught up the national 
 feud, and the refusal of one daring youth to give up the Stars and 
 Stripes for the neighbor boys to spit upon resulted in a severe 
 laceration, and later in a fatal blow from a brick-bat. 
 
 In conducting these suits, the Court of Claims found its docket 
 well crowded. The total amount paid out in judgments in such 
 cases up to February 4. 1888, was reported as $9,864,300.75. 91 
 W r hen we remember that the sums involved in each case were 
 usually small, and that these figures represent only the claims 
 
 90 Testimony of the sort here referred to may be found in the following pub 
 lished reports of cases: Ct. of Cls. Repts: III, 19, 177. 218, 240, 390; IV. 337; 
 V, 412, 586, 706. 
 
 01 Treas. Dept. Circular, Jan. 9, 1900, no. 4. For a list of judgments ren 
 dered by the Court of Claims between March, 1863, and March, 1867, see: 
 House Misc. Doc. 40 Cong., 1 sess., no. 500, pp. 2-9. 
 
RESTORATIONS BY THE COURT OF CLAIMS 51 
 
 which were allowed, we can form an idea of the vast amount of 
 this litigation which the court handled. 
 
 The most critical point of law touching these claims related 
 to the effect of pardon and amnesty action of the President upon 
 the rights of claimants for property seized during the war. Were 
 disloyal owners permanently divested of their property by that pro 
 viso of the Captured Property Act which required proof that the 
 owner had "never given any aid or comfort to the present rebel 
 lion", or could the consequences of disloyalty be avoided by the 
 President s proclamation of pardon and amnesty, and the owner s 
 acceptance of the oath of allegiance? This question was presented 
 in the case of United States z>, Klein, appealed from the Court of 
 Claims to the Supreme Court. 92 The most liberal view of the case 
 was sustained by the latter tribunal. In main substance the opinion 
 was that Congress had intended to restore property not only to loyal 
 owners, but to those who had been hostile and might later become 
 loyal ; that after the proclamation of general amnesty the restora 
 tion of property to all bona fide owners claiming under the Cap 
 tured Property Act became the duty of the government, and that 
 such restoration became the "absolute right of the persons par 
 doned", the government having constituted itself the trustee, not 
 only for claimants protected by the original act, but for all who 
 might later be recognized as entitled to their property. " Pardon 
 and restoration of political rights ", declared the court, "were in 
 return for the oath and its fulfillment. To refuse it would be a 
 breach of faith not less cruel and astounding than to abandon the 
 freed people whom the executive had promised to maintain in 
 their freedom". 
 
 After this decision of the Supreme Court, therefore, all claim 
 ants who had been dispossessed through the operation of the Cap 
 tured Property Act were, regardless of loyalty, entitled to restora 
 tion. There was, however, another proviso in the original act which 
 more seriously affected the claimants prospects of recovery. The 
 suits must, according to the law, be brought within two years "after 
 the suppression of the rebellion". The claim, for instance, in the 
 case of United States v. Anderson was preferred June 5, 1868. 93 
 
 82 13 Wallace 168. The decision in U. S. v. Padelford, 9 Wallace, 531, is 
 similar. 
 
 9 9 Wallace 56. 
 
52 THE; CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 Could this be construed as having been presented within the pre 
 scribed limit? Here the court was called upon to fix the exact 
 date when, in the strict legal sense, the rebellion ceased. Again a 
 liberal construction was adopted. The court held that Congress 
 could not be supposed to have left possible claimants to decide this 
 matter for themselves, and that, in lieu of a formal treaty of peace 
 which in the case of a foreign war serves to mark the exact point 
 at which the legal relations peculiar to war cease, there must be 
 some public act or legislation which will serve to fix definitely such 
 a point. The date of President Johnson s proclamation, August 20, 
 1866, in which for the first time the entire suppression of the 
 rebellion throughout the country was declared, was taken by the 
 court as marking the legal termination of the war. It was pointed 
 out that on March 2, 1867, Congress, referring to an act of June 
 20, 1864, regarding the pay of non-commissioned officers and 
 privates, had continued the act in force for three years "from and 
 after the close of the rebellion, as announced by the proclamation 
 of the President, August 20, 1866". This date had therefore been 
 declared by the executive and legislative departments to be the 
 termination of the rebellion, and the court declared that it must 
 therefore be so applied with reference to the rights intended to be 
 secured by the Captured Property Act. 
 
 Unfortunately for the claimants, the decision in the Klein case 
 did not come until 1869, after the period had expired during which, 
 according to the declaration of the Supreme Court in the Anderson 
 case, the recovery of property was possible. It thus appeared that 
 there were many claimants to whom, as a matter of equity, Con 
 gress owed relief, while at the same time it was alleged that a 
 considerable sum, variously reported but supposed to be well over 
 ten million dollars, remained as a part of the captured property or 
 cotton "fund" after the necessary deductions were made. For this 
 reason agitation was begun to secure relief for those claimants 
 who, under the very natural misapprehension that they would be 
 required to prove loyalty, had allowed the two years limitation to 
 lapse without taking advantage of their right to plead before the 
 Court of Claims. Various bills to revive in favor of such claim 
 ants the right of action before the Court of Claims have been pre 
 sented to Congress, and the House Committee on Judiciary has at 
 
RESTORATIONS BY THE COURT OF CLAIMS 53 
 
 various times reported favorably on such legislation, but no action 
 has yet been taken. 94 Meanwhile curious suggestions have been 
 made regarding the disposition of this "fund", such as dividing it 
 among the states or devoting it to the relief of ex-Confederate 
 soldiers, but these proposals, like the proposed bills and committee 
 reports, have been lost in the general oblivion of the Congressional 
 calendar. 
 
 In general the various reports and proposals presented on this 
 complicated subject are inconsistent. The number of claimants 
 whose right of action was debarred has doubtless been greatly ex 
 aggerated, while a careful analysis shows that the figures and 
 assertions regarding the so-called "fund" in the treasury are mis 
 leading. In the report of the House Committee on Judiciary, sub 
 mitted to the first session of the fifty-second Congress, we find a 
 statistical exhibit which shows $31,722,466.20 as the "whole amount 
 of the sales from captured and abandoned property", and after the 
 deduction of such items as cost of collecting, amounts transferred 
 or released, or amounts paid out of the "fund" on judgments or 
 special acts of release, a balance of $10,512,007.96 is shown as the 
 amount remaining from the captured property "fund". 95 
 
 By reference, however, to the report of the Register of the 
 Treasury, February 4, 1888, it appears that the net receipts from 
 captured and abandoned property were $26,887,584.39. Not all of 
 this, however, was secured from the sale of privately owned cotton. 96 
 A sum exceeding six million dollars included under this heading 
 was derived from the purchase of cotton by the treasury officials, 
 the cotton later being sold for gold, thus involving a double profit 
 owing to the premium on gold. Receipts from miscellaneous prop 
 erty, rents, and from the sale of captured vessels were also classed 
 in this same fund. A deduction of these various items leaves 
 $15,880,664.19, as the receipts from the sale of individual cotton. 
 
 One very important item in this last total, however, was a 
 sum amounting to $4,886,671 received from the sale of cotton cap 
 tured after June 30, 1865, nearly all of which was Confederate, 
 
 "Cong. Globe, 52 Cong., 1 sess., House Bills 173, 455, 2764, 5451; Ibid. 
 vol. 29, House Bill 7618 ; House Reports, 50 Cong., 1 sess., no. 646, serial 2600 ; 
 Ibid, 51 Cong., 1 sess., no. 784, serial 2809 ; Ibid, 52 Cong., 1 sess., no. 1377. 
 
 M House Report, 52 Cong., 1 sess., no. 1377. 
 
 ""Treas. Dept. Circular, Jan. 9, 1900, no. 4. 
 
54 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 not private, cotton. To understand the nature of this item it must 
 be explained that seizures under the Captured and Abandoned Prop 
 erty Act did not cease at the close of war. Besides the collection 
 of private property the treasury officials had been constantly active 
 in seizing the property of the Confederate government. 97 Much 
 of this property was in the hands of private holders scattered through 
 the insurrectionary states, and the treasury agents continued their 
 collections of this sort of property during 1865. After the spring 
 of 1865 the seizures of the Treasury Department were chiefly con 
 fined to property which had been sold to the Confederate govern 
 ment, or to one of the Confederate states, or subscribed to the 
 "produce loan" of the Confederacy, or delivered as military sup 
 plies to the Confederate army. 
 
 In collecting this property of the Confederate government, much 
 difficulty was experienced in avoiding the seizure of purely private 
 property. Agents \vould often take cotton held in private posses 
 sion on suspicion that it belonged to the Confederate States. If 
 mistakes were discovered, the property was usually released to the 
 owner at once without requiring proofs of loyalty. Sometimes 
 rather loose methods were used in the collection of "C. S. cotton" 
 after the war. Mr. X would come to the agent and say, "I know 
 where some C. S. cotton is", and the agent would engage to give 
 him a portion if he would bring it in. X would then get any cotton 
 he could lay his hands on and deliver it over to the agent. 98 In this 
 and similar ways, there was indiscriminate seizure of private prop 
 erty with that which had belonged to the Confederacy, but on the 
 whole considerable caution seems to have been exercised by the 
 Treasury Department. 99 To aid them in avoiding erroneous seizure 
 of private cotton, agents had access to lists which had been kept 
 by "rebel" cotton agents, showing where and in whose possession 
 
 97 House Ex. Doc. 39 Cong., 2 sess., no. 97. 
 
 98 In some instances of this sort as high as 75 per cent, of the proceeds 
 was to be paid to the person undertaking the risk of collecting the cotton. The 
 records of B. F. Flanders, Supervising Special Agent of the Treasury Depart 
 ment at New Orleans contains numerous such instances. These records are 
 filed with the Miscellaneous Division of the Treasury Department. 
 
 99 In Secretary McCulloch s printed circular of instructions, Oct. 20, 1865, 
 agents were warned to use great care in collecting property belonging to the 
 Confederate government, or subscribed to the produce loan, "to the end that the 
 rights of individuals be not interfered with, or the property of unoffending 
 persons taken from them". 
 
RESTORATIONS BY THE COURT OF CLAIMS ?0 
 
 C. S. A. cotton was to be found. Another valuable source of evi 
 dence was to be had in the county tax lists from which all public 
 (Confederate) cotton was excluded as not subject to taxation, and 
 on which none but private cotton was entered. 100 
 
 If now we recur to the above-mentioned fifteen millions actually 
 received from individual cotton, and deduct the various disburse 
 ments which must be charged against this sum, such as expenses, 
 amounts allowed by the Secretary of the Treasury on claims, 
 amounts paid on judgments of the Court of Claims, or allowed by 
 private acts of Congress, there remains a balance of $4,992,349.92. m 
 This amount, it will be noticed, is substantially equal to the proceeds 
 of the sale of cotton which belonged to the Confederacy. Hence it 
 is maintained by the Treasury Department that no such "fund" as 
 that mentioned in the House Committee s report exists, and that 
 the balance now in the treasury represents not the value of cotton 
 due to individuals whose claims have been debarred, but the amount 
 received from Confederate cotton which the United States is under 
 no just or equitable obligation to return. 
 
 These war claims are still being constantly urged. When pre 
 sented directly to the Court of Claims they are declared ontlawed 
 by the two-year limitation. If they appear in the form of private 
 petitions to Congress for equitable relief, they are ultimately re 
 ferred to the Treasury Department for recommendation, and the 
 department maintains a set of clerks whose whole time is given to 
 examining the genuineness of such claims. In this rather unsatis 
 factory shape the question rests today, with an exaggerated impres 
 sion abroad as to the number of owners dispossessed, and with a 
 misapprehension, even on the part of Congressmen, as to the exist 
 ence of a "fund" for their relief. 
 
 100 Affidavit of V\"m. A. McCann, Dec. 12, 1865, Cotton and Captured Property 
 Record no. 4027. Files of the Treas. Dept. 
 
 Dept. Circular, Jan. 9, 1900, no. 4. 
 
BIBLIOGRAPHY 
 
 GENERAL ACCOUNTS 
 
 BLAINE, JAMES G., Tzventy Years of Congress, from Lincoln to 
 Garfield. (Norwich, Conn., 1884.) Suggestive and valuable, 
 not only in its analysis of congressional problems, but in the 
 pointed characterizations of the men of the period; some 
 what colored in the treatment of confiscation by the author s 
 decided northern sympathies. 
 
 DRAPER, JOHN W., The Civil War in America. (New York, 
 1867.) Rather uncritical and lacking in documentation. Very 
 suggestive regarding the financial and industrial condition of 
 the South, though superseded in this respect by the more 
 scholarly work of J. C. Schwab. 
 
 DUNNING, WM. A., Essays on the Civil War and Reconstruc 
 tion. (New York, 1898.) A discussion of the legal prob 
 lems arising out of the war, and their relation to the American 
 constitutional system. For a critical statement regarding this 
 author s treatment of confiscation, see supra p. 16 n. 
 
 HOSMER, JAMES K., The Appeal to Arms, 1861-1863. The Am. 
 Nation, vol. 20. (New York, 1907.) Deals briefly with 
 both Confederate and Federal confiscation. Not strictly ac 
 curate (see supra p. 35 n.). 
 
 KETTEL, THOMAS P., Southern Wealth and Northern Profits. 
 (New York, 1860.) Contains much statistical information 
 bearing upon the economic situation in the South. The 
 author, a New York Democratic editor, pleads in vigorous 
 argumentative style the cause of the South, which in his 
 opinion, suffers from manifold economic grievances. This 
 decided partisanship renders valueless many of the author s 
 sweeping generalizations. 
 
 RHODES, JAMES F., History of the United States, 1850-1877. 
 (New York, 1899.) This well known work deals only with 
 the course of legislation bearing upon confiscation, and that 
 briefly. 
 
 (56) 
 
BIBLIOGRAPHY 57 
 
 COLLECTIONS OF SOURCES (UNOFFICIAL) 
 
 ANNUAL CYCLOPAEDIA. A yearly summary of the chief happen 
 ings in political and military history. The account of pro 
 ceedings in Congress has value as an abridgment of the 
 voluminous record in the Congressional Globe. The volume 
 for 1863 contains a useful general article on confiscation. 
 
 FLEMING, WALTER L., Documentary History of Reconstruction. 
 (Cleveland, O., 1907.) Valuable for picturesque first-hand 
 material reflecting the condition of the South in the years 
 following 1865. 
 
 McPnERSON, EDWARD, The Political History of the United 
 States of America during the Great Rebellion. (New York, 
 1864.) A varied collection of documentary material, com 
 piled by an author whose position as clerk of the House of 
 Representatives afforded peculiar advantages. The subject 
 matter is political and diplomatic rather than military. 
 
 McPHERSON, EDWARD, The Political History of the United 
 States of America during the Period of Reconstruction. 
 (Washington, 1871.) A continuation of the earlier collection 
 of documents. Much of this material is now available in 
 other convenient forms. 
 
 McPHERSON, EDWARD, Handbook of Politics for 1868. (Wash 
 ington, 1868.) As relevant to the subject of confiscation this 
 collection includes such material as President Johnson s mes 
 sages and speeches, amnesty proclamations, etc. 
 
 MOORE FRANK, The Rebellion Record. (New York, 1862- 
 1869.) Along with important documents, the editor has in 
 cluded in this large collection a deal of curious material of 
 an anecdotal and poetic nature. 
 
 OFFICIAL PUBLICATIONS 
 
 CONGRESSIONAL RECORD. 
 
 CONGRESSIONAL GLOBE. 
 
 FINANCE REPORTS. Annual reports of the Secretary of the 
 Treasury on the state of the finances. Besides statistical data 
 these reports contain general descriptions and recommenda 
 tions touching the condition of the national finances, and 
 accounts of the activities of the various branches of the 
 Treasury Department. 
 
58 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 THE WAR OF THE REBELLION : OFFICIAL RECORDS OF THE UNION 
 AND CONFEDERATE ARMIES. In addition to the military and 
 naval details which appear in this authentic collection, there 
 is much incidental material not directly connected with the 
 operations of the armies. The following volumes in the col 
 lection have been drawn upon for material regarding con 
 fiscation and the military treatment of property : Series I, 
 volumes 15, 33, 37; series III, volumes 1, 2, 3, 4, 5. 
 
 RICHARDSON, (Ed.) Messages and Papers of the Presidents. 
 (Washington, 1897.) 
 
 FREEMAN, DOUGLAS S., A Calendar of Confederate Papers. 
 (Richmond, 1908.) A useful guide; contains no material 
 directly relative to confiscation. 
 
 SENATE JOURNAL. 
 HOUSE JOURNAL. 
 
 HOUSE EXECUTIVE DOCUMENTS : 
 
 37 Cong. 3 sess. No. 32. Report of Att. Gen l Bates re 
 garding the enforcement of the confiscation acts in the 
 Dist. of Col. Jan. 14, 1863. 
 
 37 Cong. 3 sess. No. 44. The seizure of the property of 
 
 John A. Campbell in Washington. 
 39 Cong. 1 sess. No. 99. Pardon and Amnesty. 
 
 39 Cong. 1 sess. No. 3. Sec. McCulloch s Report on the 
 Finances, 1865. 
 
 39 Cong. 2 sess. No. 1, ser. 1285, pp. 705 fol. Report of 
 Com rs of Freedmen s Bureau. Nov. 1, 1866. 
 
 39 Cong. 2 sess. No. 97, ser. 1293. Elaborate report re 
 garding "captured and forfeited cotton". Feb. 20, 1867. 
 
 39 Cong. 1 sess. No. 19, ser. 1255. Report of Com r of 
 Freedmen s Bureau. 
 
 39 Cong. 2 sess. No. 7, ser. 1287. Report of Com r of 
 Freedmen s Bureau. 
 
 39 Cong. 2 sess. No. 31, ser. 1289. List of special pardons 
 by President Johnson. Jan. 9, 1867. (26 pp.) 
 
 40 Cong. 1 sess. No. 32, ser. 1311. List of special pardons 
 by President Johnson. July 19, 1867. (84 pp., 44 names 
 per page.) 
 
BIBLIOGRAPHY 59 
 
 40 Cong. 2 sess. No. 16, ser. 1330. List of special pardons 
 by President Johnson. Dec. 4, 1867. ( 147 pp., 44 names 
 per page.) 
 
 40 Cong. 2 sess. No. 102, ser. 1037. Property seized in 
 Louisiana a series of reports. Jan. 16, 1868. 
 
 40 Cong. 2 sess. No. 288, ser. 1343. Judgments in the 
 Court of Claims. May 14, 1868. 
 
 40 Cong. 2 sess. No. 304, ser. 1345. Confederate prop 
 erty in Europe. 
 
 40 Cong. 3 sess. No. 1, ser. 1367. Com r Howard s report 
 regarding Freedmen s Bureau. Oct. 14, 1868. 
 
 40 Cong. 3 sess. No. 82, ser. 1374. Report of Sec. of Treas. 
 regarding money arising from captured and abandoned 
 property. Feb. 2, 1869. 
 
 41 Cong. 2 sess. No. 1, ser. 1412, pp. 497 foil. Report 
 of Com r Howard, Freedmen s Bureau. Oct. 20, 1869. 
 
 41 Cong. 2 sess. No. 89, ser. 1417. Estimate of expenses 
 submitted by Geo. S. Parker, Chief of captured property 
 division, for year ending June 30, 1870. Contains infor 
 mation regarding the prosecution of suits for the recovery 
 of captured property. 
 
 43 Cong. 1 sess. No. 146, ser. 1610. Report of total pro 
 ceeds from captured and abandoned property. Feb. 21, 
 1874. 
 
 HOUSE MISCELLANEOUS DOCUMENTS: 
 
 38 Cong. 1 sess. No. 78. Letter of S. P. Chase regarding 
 
 the sales of captured property. April 13, 1864. 
 40 Cong. 1 sess. No. 500. List of judgments in the Court 
 
 of Claims between March, 1863, and March, 1867. 
 40 Cong. 2 sess. No. 120, ser. 1350. Judgments in Court 
 
 of Claims Cotton cases. April 20, 1868. 
 40 Cong. 3 sess. No. 4, Ser. 1385. List of judgments in 
 
 Court of Claims, Dec. 7, 1868. 
 HOUSE REPORTS: 
 
 42 Cong. 3 sess. No. 43, ser. 1576. Claims of loyal citizens 
 for private property taken for public use. 
 
 44 Cong. 1 sess., ser. 1708. Brief report of Judiciary Com 
 mittee on direct taxes in insurrectionary states. Feb. 3, 
 1876. 
 
60 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 45 Cong. 3 sess. No. 83, ser. 1866. Report of Committee 
 on Judiciary regarding persons holding permits under 
 President to secure captured property. 
 
 50 Cong. 1 sess. No. 646, ser. 2600. Report of House 
 Committee on Judiciary, recommending legislation touch 
 ing the rights of claimants under the Captured Property 
 Act. 
 
 51 Cong. 1 sess. No. 784, ser. 2809. Report of Committee 
 on Judiciary. (Similar to Ser. 2600, No. 646.) 
 
 SENATE EXECUTIVE DOCUMENTS: 
 
 37 Cong. 2 sess. No. 16. Report by Reverdy Johnson re 
 garding affairs in New Orleans. 
 
 40 Cong. 2 sess. No. 22. Report of Sec. McCulloch re 
 garding the release of property by the Treasury Depart 
 ment. 
 
 40 Cong. 2 sess. No. 58. Report by Solicitor of the Treas 
 ury, giving total proceeds from confiscations under act of 
 July 17, 1862. 
 
 40 Cong. 3 sess. No. 23*^, ser. 1360. Contains the various 
 amnesty proclamations. 
 
 41 Cong. 2 sess. No. 47, ser. 1406. Appropriations to de 
 fend certain cotton cases in Court of Claims. Feb. 18, 
 1870. 
 
 41 Cong. 2 sess. No. 98, ser. 1407. Lands sold for direct 
 taxes in insurrectionary states. June 9, 1870. 
 
 43 Cong. 2 sess. No. 23, ser. 1629. Extensive statistics 
 regarding the seizure of cotton submitted by the Secretary 
 of the Treasury. Feb. 3, 1875. 
 
 50 Cong. 2 sess. No. 115, ser. 2612. Report of gross pro 
 ceeds of cotton and other property received under the 
 Captured Property Act. 
 
 SENATE MISCELLANEOUS DOCUMENTS : 
 
 41 Cong. 2 sess. No. 2, ser. 1408. Judgments in the Court 
 
 of Claims. Feb. 6, 1869. 
 41 Cong. 3 sess. No. 6, ser. 1442. Judgments in the Court 
 
 of Claims. Dec. 6, 1870. 
 43 Cong. 1 sess. No. 7, ser. 1584. Judgments in the Court 
 
 of Claims. Dec. 2, 1873. 
 
BIBLIOGRAPHY 61 
 
 43 Cong. 1 sess. No. 96. Petition of G. W. P. C. Lee 
 regarding his claim on the Arlington estate in Virginia. 
 
 SENATE REPORTS : 
 
 40 Cong. 3 sess. No. 239, ser. 1362. Report of Committee 
 on Judiciary regarding President Johnson s sweeping par 
 dons. The tone of the report is distinctly hostile to the 
 President. Feb. 17, 1869. 
 
 44 Cong. 1 sess. No. 458, ser. 1668. Report of Committee 
 on Claims, regarding permits granted by President Lin 
 coln to purchase products in insurrectionary states. 
 
 STATUTES 
 
 REVISED STATUTES OF THE UNITED STATES. (2d Ed. 1878.) 
 The revision includes laws remaining in force on Dec. 1, 1873. 
 
 STATUTES AT LARGE. 
 
 STATUTES OF THE CONFEDERACY. (Richmond, 1864.) The full 
 title reads: The Statutes at Large of the Provisional Gov 
 ernment of the Confederate States of America. Covers the 
 period from Feb. 8, 1861, to Feb. 18, 1862. 
 
 REPORTS OF DECISIONS 
 
 THE FEDERAL CASES, comprising cases argued and determined 
 in the circuit and district courts of the United States, 1789- 
 1880. 
 
 OPINIONS OF THE ATTORNEYS-GENERAL. 
 
 UNITED STATES REPORTS. 
 
 REPORTS OF CASES DECIDED IN THE COURT OF CLAIMS. 
 
 Beginning with volume iv of this series, a large number of 
 suits are reported pertaining to Captured and Abandoned 
 Property. The expressions of the court regarding the con 
 fiscation acts are more or less incidental. The series contains 
 also the decisions of the Supreme Court in appealed cases. 
 
 AUTHORITIES ON INTERNATIONAL LAW 
 
 BURLAMAQUI, J. J., ( 1694-1748). The Principles of Natural and 
 Political Law. (Boston, 1792.) The work originally ap 
 peared at Geneva, Switzerland, in 1747. The author has 
 much to say of "primitive causes", "divine will", and "nat 
 ural law". A typical treatise from the standpoint of natural 
 right philosophy. 
 
62 THE CONFISCATION" OF PROPERTY DURING THE CIVIL WAR 
 
 BYNKERSHOEK, CORNELIUS VON. (1673-1743.) Quaestiones Juris 
 Publici. An eminent Dutch authority. Much quoted by 
 Chancellor Kent. 
 
 DANA, R. H., JR. (Editor.) Wheaton s Elements of Interna 
 tional Law, 8th Ed. (Boston, Cambridge, 1866.) A rare 
 book, out of print. See under Wheaton. 
 
 GROTIUS, HUGO. (1583-1645.) De Jure Belli ac Pads. (The 
 original work appeared in Latin in Paris in 1625, several 
 later editions being published during the author s lifetime. A 
 convenient English edition with notes is to be found in the 
 Universal Classics Library, pub. by Walter Dunne, New York 
 and London. ) This epoch making work, though touched by the 
 inspired genius and human sympathies of its author, never 
 theless reflects the spirit of the time, and should hardly be 
 expected to contain a statement of liberal rules regarding the 
 treatment of property during war. The author s method in 
 Book III is to cite the opinions of former jurists and to 
 state existing usage. He supports confiscation. 
 
 HALL, WILLIAM EDWARD, A Treatise on International Law. 
 (Oxford, 1895, 4th Ed.) A scholarly discussion of inter 
 national usage from the English standpoint. The author s 
 lines of interpretation are rather liberal, laying stress on 
 recent, advanced practice. 
 
 HALLECK, MAJOR GEN L H. W.. International Law, or Rules 
 Regulating the Intercourse of States in Peace and War. (Ed. 
 Sir Sherston Baker, Bart. London, 1893.) The work orig 
 inally appeared at San Francisco in 1861. The section deal 
 ing with the rules of war emphasizes the obligations and 
 rights of the military rather than the political authorities. 
 Not so complete or authoritative as the work of Wheaton. 
 
 HEFFTER, DR. A. G., Das Huropaische Volkerrecht der Gegen- 
 wart auf den bishcrigcn Grundlagen, bearbeitet von Dr. F. 
 H. Gcffcken. (Strassburg, 1881.) The original work of Dr. 
 Heffter, a professor at Berlin, appeared in 1844, and his 
 treatise still occupies the front rank as a German authority. 
 
 KENT, JAMES, Commentaries on American Laiv. 14th Ed., 
 edited by J. M. Gould. (Boston, 1896.) The first volume, 
 
BIBLIOGRAPHY 63 
 
 dealing with the law of nations, appeared in 1826, and had 
 much to do in shaping and expounding the American notions 
 of international law in the period preceding the Civil War. 
 
 LAWRENCE, T. J., The Principles of International Lazv. (3d. Ed. 
 Boston, 1907.) A general treatise, written by an English pro 
 fessor of international law. In point of view the work re 
 sembles that of Professor Hall. 
 
 PUFFENDORF, SAMUEL VON. (1632-1684.) Lc Droit dc la Nature 
 et des Gens. The work originally appeared in 1672, and has 
 been frequently translated and republished. It is a ponderous 
 study of ancient and mediaeval usage, with which is inter 
 woven seventeenth century doctrines of natural right philoso 
 phy. Frequently cited by early American jurists. 
 
 MOORE, JOHN BASSETT, A Digest of International Laiv. Wash 
 ington, 1906. House Doc. Ser. Nos. 4202-4206. A valuable 
 compendium of American documents relating to international 
 law. 
 
 RUTHERFORD, THOMAS, Institutes of Natural Law. London, 
 1754. (2cl. Amer. Ed. Baltimore, 1832.) Written from the 
 standpoint of a churchman Who emphasizes philosophical and 
 moral rather than legal principles. The author, less scholarly 
 than for instance Puffendorf, relied largely upon the pioneer 
 work of Grotius. 
 
 VATTEL, EMMERICH DE. (1714-1767.) The Law of Nations, 
 or Principles of the Law of Nature applied to the conduct 
 and affairs of nations and sovereigns. (Ed. Luke White, 
 Dublin, 1792.) Vattel was perhaps the most authentic writer 
 on international law at the beginning of the nineteenth cen 
 tury. Though much of his reasoning was based upon the 
 "law of nature", he relied extensively upon modern inter 
 national usage. 
 
 WHEATON, HENRY. (1785-1848.) Elements of International 
 Law. Boyd Ed. London, 1889. The first appearance of this 
 authentic treatise occurred in 1836, and along with Kent it 
 remained the chief American authority at the time of the 
 Civil War. 
 
64 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 WHEATON, HENRY, Elements of International Law. 8th Ed. 
 edited with notes by R. H. Dana, Jr. (Boston, Cambridge, 
 1866.) This edition, which, however, is rare, is fuller in 
 annotations, especially with reference to the treatment of 
 enemy property, than that of Boyd. 
 
 WOOLSEY, T. D., Introduction to the Study of International Law. 
 (6th Ed. New York, 1906.) The first edition of this work 
 appeared in 1860, and there have been various revisions. It 
 is a text-book of the highest authority, and is equipped with 
 a valuable appendix, in which are contained outlines of im 
 portant treaties, and comments on the chief authorities. 
 
 TREATIES : 
 
 Treaties and Conventions concluded betzveen the United States 
 and other Powers. (Washington, 1889.) Contains, besides 
 the text of the treaties, notes, accounts of negotiations, and 
 miscellaneous matter. The collection begins with July 4, 1776. 
 
 DE MARTENS, G. F., Nouveau Recueil de Traites . . . des 
 Puissances et Etats de 1 Europe. 2d Ed. Goetting., 1817-1835. 
 Preceded by the same author s "Recueil", and continued by 
 later collections and supplements. The "Nouveau Recueil" 
 covers the period from 1808 to 1839. 
 
 BIOGRAPHICAL WORKS 
 
 BUTLER, GENERAL BENJ. F., Butler s Book. (Boston, 1892.) A 
 curious self -vindication of General Butler s remarkable career. 
 Chapter xii deals briefly with the enforcement of the con 
 fiscation acts in Louisiana. 
 
 PARTON, JAMES, General Butler at New Orleans. (Boston, 1892.) 
 A fairly reliable narrative of Butler s administration in Louis 
 iana in 1862. 
 
 SHERMAN, JOHN, Recollections of Forty Years. (Chicago, Lon. 
 don, 1895.) These memoirs cover the years of Sherman s 
 career as Representative and Senator from Ohio and as Sec 
 retary of the Treasury. He gives in vol. I an account of the 
 debate in the House on the second confiscation bill, in which 
 he took prominent part. 
 
BIBLIOGRAPHY 65 
 
 SPECIAL TREATISES AND MONOGRAPHS 
 
 DANA, R. H., JR., Enemies Territory and Alien Enemies. (Bos 
 ton, Cambridge, 1864.) Rare and out of print. The author is 
 concerned chiefly with an interpretation of the Supreme 
 Court s decisions in the Prize causes. 
 
 ECKENRODE, HAMILTON J., The Political History of Virginia. 
 (Johns Hopkins Univ,i Studies in History and Political 
 Science, series XXII, Baltimore, 1904. Especially serviceable 
 in its description of the Alexandria government. The author, 
 now in charge of the archives of the state, has made extensive 
 use of local and particularly newspaper material. 
 
 LIEBER, FRANCIS, Instructions for the government of the armies 
 of the United States in the Field. (New York, 1863.) Is 
 sued as General Order 100, Adjutant General s Office. (Offic. 
 Rec. Ser. Ill, vol. 3, pp. 148 fol.) A treatise on the rules 
 of war for the use of the Union officers during the Civil War. 
 
 PEIRCE, PAUL SKEELS, The Frecdmen s Bureau. (Univ. of Iowa 
 Studies, vol. Ill, No. 1. 1904.) Deals rather fully with the 
 acquisition and treatment of confiscated and abandoned lands 
 by the bureau ; valuable also for detailed documentary refer 
 ences. 
 
 SCHWAB, JOHN C., The Confederate States of America, a finan 
 cial and industrial History of the South during the Civil War. 
 (New York, 1901.) Presents a careful though brief analysis 
 of the effects of Confederate sequestration, based upon a 
 critical study of published statistical sources. The Confed 
 erate records in the treasury archives at Washington, a valu 
 able source, seem not to have been consulted. 
 
 NEWSPAPER AND MAGAZINE MATERIAL 
 The Alexandria Gazette, Alexandria. Va. 
 The National Intelligencer, Washington, D. C. 
 The New Orleans Price Current, New Orleans, La. 
 The Richmond Dispatch, Richmond, Va. 
 
 The Provisional Judiciary of Louisiana. American Law Reg 
 ister, March, 1865. vol. XIII, p. 257. 
 
 MOORE, FRED W., Ph. D., Louisiana Politics from 1863 to 1866. 
 South Atlantic Rciieiv, vol. I, p. 128. 
 
66 THE CONFISCATION OF PROPERTY DURING THE CIVIL WAR 
 
 UNPUBLISHED MATERIAL 
 
 For the subject of confiscation and captured property the unpub 
 lished material, though voluminous, is for the most part difficult of 
 access, and unsuitably arranged for purposes of historical investi 
 gation. The records of the various district courts of the United 
 States form an important and authentic source of information, and 
 are usually well preserved, except where some accident has caused 
 their destruction, as in the case of the Chicago fire of 1871. The 
 entries, however, in the docket books, where a convenient chrono 
 logical arrangement is preserved, are not always definite enough to 
 distinguish sharply the various kinds of seizure, and a more laborious 
 examination of the court files becomes necessary. Among these 
 papers are contained the original records of every proceeding con 
 nected with the trial : the libel, the plaintiff s answer, a copy of the 
 monition, the various depositions and affidavits, the writ of "vendi", 
 the marshal s return of sale, the certificate of the court s final 
 process with the written opinion, perhaps, of the judge, and what 
 ever petitions for appeal or restoration may have been submitted 
 after the condemnation of the property. 
 
 The records of the Attorney-General s office for the period of 
 the Civil War are disappointing. No systematic series of reports 
 was kept which would afford a comprehensive notion of the extent 
 of the enforcement of the Confiscation Acts throughout the country. 
 Communication between this office and the various district attorneys 
 and marshals \vas incidental and casual rather than regular, while 
 the more important portions of the correspondence with the other 
 executive departments have been published in the series of congres 
 sional documents. The material, moreover, is loosely arranged and 
 poorly housed, and much of it (e. g., the letters received), is entirely 
 without index. There is enough here, however, to reveal the prob 
 lems encountered in the enforcement of the acts, the methods of 
 evasion and interference resorted to, and the nature of the instruc 
 tions, usually not very satisfactory, which were sent out from Wash 
 ington. 
 
 The voluminous records touching "captured and abandoned 
 property are deposited in the office of the Miscellaneous Division 
 of the Treasury Department. This varied mass of material occupies 
 
BIBLIOGRAPHY 67 
 
 several scores of cubic feet, and contains letter books and reports 
 of treasury agents, papers collected in the adjudication of "cotton 
 claims", plantation records, reports of inspectors, etc. In this office 
 there is also deposited a considerable mass of Confederate records 
 touching the sequestration of property, the "cotton loan", and the 
 various transactions of the Confederate treasury. Some of these 
 records were captured, and some were purchased. A large part 
 of this material has been recently indexed by the card system, and 
 is still being constantly used for securing data relating to various 
 kinds of "war claims". Like much of the government s records, how 
 ever, it is poorly housed and almost inaccessible for purposes of 
 historical investigation. For an effective use of the material found 
 in the Treasury Department a considerable amount of discrimination 
 is necessary. Even in the case of treasury warrants, which are 
 presumably the most accurate and definite of documents, it is in 
 some cases necessary to "go behind the face of the return", for in 
 stances are not wanting in which these warrants have stated incor 
 rectly the source from which money has been derived. 
 
INDEX 
 
 ABANDONED ESTATES, in gen 
 eral, 44; in Louisiana, 44; law re 
 lating to, 39; leased by treasury 
 agents, 44; methods of adminis 
 tration, 45 foil.; treated as virtual 
 confiscation, 45; placed in charge 
 of Freedmen s Bureau, 47. See 
 also Captured and Abandoned 
 Property. 
 
 ADMIRALTY PROCEDURE, con 
 formity to, in confiscation cases, 
 11. 
 
 AMENDMENTS, bearing of fifth 
 and sixth, 30. 
 
 AMNESTY, see Pardon and Am- 
 nesty. 
 
 ARKANSAS, collection of direct 
 taxes in, 34. 
 
 ARLINGTON, seizure of, 35 foil. 
 
 ATTAINDER, 9, 12; interpretation 
 of, 24. 
 
 ATTORNEY-GENERAL, has gen 
 eral sxiperintendence of confisca 
 tion proceedings, 13; declines to 
 advise law officers, 14; size and 
 importance of the office in period 
 of Civil War, 13; records in the 
 office, 14, 66. See also Speed. 
 
 BELLIGERENT RIGHT OF CON 
 FISCATION, 16 foil. 
 
 BETTS, Judge in southern district, 
 N. Y., decision of, 22. 
 
 ELAINE, J. G., work cited, 56. 
 
 BLAIR, SAMUEL S., Representa 
 tive from Pennsylvania, views of, 
 20 n. 
 
 BLAIR, FRANCIS P., a Representa 
 tive from Missouri, vote on con 
 fiscation, 11 n. 
 
 BORDER STATES, Attitude on con 
 fiscation, 9. 
 
 BROWN, WM. G., alluded to, 11 n. 
 
 BURLAMAQUI, views on confisca 
 tion, 17 n. 
 
 BYNKERSHOEK, views on confisca 
 tion, 17 n.; 62. 
 
 CAPTURED AND ABANDONED 
 PROPERTY, Act of March 12, 
 1863, relating to, 39; methods of 
 
 collecting, 40 foil.; sold in loyal 
 states, 41; contracts for collecting, 
 41; fraudulent practices in con 
 nection with, 42; total proceeds 
 arising from, 43; restoration of, 
 51; records pertaining to, 40 n. ; 
 so-called "fund", 53, 55. See also 
 Restoration, Court of Claims, Cot 
 ton, Treasury Department, Aban 
 doned Property. 
 
 CHASE, SALMON P., Sec. of Treas 
 ury, advises confiscation of rebel 
 property, 8. 
 
 CIVIL WAR, legal character of, 16, 
 29. 
 
 CONFEDERATE GOVERNMENT, 
 sequestration law, 8; officers of, 
 subject to confiscation, 10; orders 
 burning of cotton, 41 n.; collec 
 tion after the war of property be 
 longing to, 54. 
 
 CONFISCATION, Act of August 6, 
 1861, 8; Act of July 17, 1862, 9, 
 10; petitions for, 8; suggested by 
 Secretary Chase, 8; superintend 
 ence of proceedings, 13; extent, 
 15; methods of securing informa 
 tion relative to confiscable prop 
 erty, 13; cases in Indiana, 15 n. ; 
 District of Columbia, 15 n. ; de 
 clared a belligerent right by Su 
 preme Court, 17-18; constitution 
 ality of, 29 foil.; criminal charac 
 ter of, 21; effect of pardons on, 
 46 n. ; suspension of proceedings, 
 46 n. ; property turned over to 
 Freedmen s Bureau, 47. 
 
 CONGRESS, Proceedings in, rela 
 tive to confiscation, 8-12; action 
 regarding termination of rebel 
 lion, 52. 
 
 CONSTITUTIONALITY, of confisca 
 tion acts, 29 foil. 
 
 COSTS, in confiscation cases, 15 n. 
 
 COTTON, burned by Confederate 
 authorities, 41 n. ; collected by 
 treasury agents, 40; seized after 
 the war, 54; decision of Supreme 
 Court relative to, 43; claims for, 
 allowed by Treasury Department, 
 47; purchase of, by Treasury offi 
 cials, 53. 
 
 (68) 
 
INDEX 
 
 69 
 
 COURT OF CLAIMS, designated as 
 tribunal to determine claims for 
 captured and abandoned property, 
 49 n.; jurisdiction over captured 
 property, 49; Treasury Depart 
 ment s jurisdiction yields to, 47; 
 restoration of property by, 49 foil. 
 
 CRIMINAL CHARACTER of con 
 fiscation proceedings, 21, 25. 
 
 DAVIS, GARRETT, Senator from 
 Kentucky, 20 n. 
 
 DAVIS, JEFFERSON, 41 n. 
 
 DEBATES, see Congress. 
 
 DEFAULT, 30. 
 
 DEMOCRATS, in thirty-seventh 
 Congress, attitude on confisca 
 tion, 11. 
 
 DIRECT TAX SEIZURES, provided 
 by Act of June 7, 1862, 33; table 
 of proceeds from this source, 34; 
 seizure of Arlington, 35 foil.; 
 seizures in South Carolina, 36; 
 restoration, 38. 
 
 DISTRICT COURTS of the United 
 States, jurisdiction in confisca 
 tion cases, 13; records of, 66. 
 
 DISTRICT OF COLUMBIA, seiz 
 ures of property in, 14 n.; 15 n. 
 
 DUNNING, WM. A., treatment of 
 confiscation, 16 n. 
 
 DURATION, see Forfeiture. 
 
 ELLIOT, THOS. D., Representa 
 tive from Mass., 20 n. 
 
 EX PARTE PROCEEDINGS, 31. 
 EXTENT of confiscation, 15. 
 
 FESSENDEN, Secretary of Treas 
 ury, alluded to, 40 n. 
 
 FINANCIAL POLICY OF CONFIS 
 CATION, 15. 
 
 FLORIDA, collection of direct taxes 
 in, 34. 
 
 FORFEITURE, DURATION OF, 12, 
 24-25, 26-28. See also Seizure, Con 
 fiscation, Direct Tax. 
 
 FREEDMEN S BUREAU, estab 
 lished, 47; secures control of 
 abandoned lands and other prop 
 erty, 47; continues lease system, 
 47; restores property, 47-48. 
 
 GRIER, Justice, opinion in Prize 
 Cases, 21. 
 
 GROTIUS, cited on Confiscation, 17 
 n.; 62. 
 
 HALL, WM. E., authority on inter 
 national law, 62. 
 
 HALLECK, MAJOR GENERAL H. 
 W., cited as authority in interna 
 tional law, 16 n. ; 62. 
 
 HEARING, Right of, 23. 
 
 HICKMAN, JOHN, alluded to, 11 n. 
 
 HOLABIRD, COL. E. S., Chief Quar 
 termaster at New Orleans, 44 n. 
 
 HOSMER, J. K., treatment of con 
 fiscation, 35 n. ; 56. 
 
 HOWARD, JACOB B., Representa 
 tive from Michigan, views on 
 rebel status, 20 n. 
 
 HOWARD, GENERAL O. O., Com 
 missioner of Freedmen s Bureau, 
 48. 
 
 INDIANA, Confiscation in, 15 n. 
 
 INTERNATIONAL LAW, bearing 
 of, on confiscation, 16 foil.; Amer 
 ican practice in interpreting, 18; 
 bibliography, 61-64. 
 
 JOHNSON, ANDREW, President of 
 United States, issues pardon proc 
 lamation, 46 n. ; issues instruc 
 tions regarding property in hands 
 of Freedmen s Bureau, 47. 
 
 JOINT RESOLUTION, explanatory 
 of second confiscation act, 12, 24. 
 
 JUDICIARY COMMITTEE of House 
 of Representatives, 35; report on 
 captured property claims, 52. 
 
 JURISDICTION, in confiscation pro 
 ceedings, 13. 
 
 JUS BELLI, 18 n.; 20. 
 
 KANSAS, confiscation in, 15 n. 
 KENT, CHANCELLOR JAMES, 
 cited on confiscation, 18 n. 
 
 LAWRENCE, T. J., authority on in 
 ternational law, 63. 
 
 LEE, G. W. P. C., petitions for the 
 satisfaction of claim to Arling 
 ton, 35. 
 
 LEE, GENERAL R. E., estate seized, 
 35. 
 
70 
 
 INDEX 
 
 LEX TALIONIS, 20. 
 
 LINCOLN, ABRAHAM, President of 
 United States, veto message for 
 second confiscation act, 11-12; is 
 sues permits to trade within rebel 
 lines, 42; pardon proclamation, 
 46 n. 
 
 LOUISIANA, abandoned property 
 in, 44; confiscations in, 15. 
 
 MARSHALS, Duties of, in Confisca 
 tion Cases, 13. 
 
 MARSHALL, JOHN, argument in 
 Ware v. Hylton, 17 n. ; opinion in 
 Brown v. U. S., 17 n. 
 
 MARYLAND, military seizures in, 
 14 n. 
 
 McCULLOCH, HUGH, Secretary of 
 Treasury, instructions regarding 
 seizure of cotton, 40 n. ; 54 n. 
 
 MILITARY SEIZURE OF PROP 
 ERTY, 14 n. 
 
 MILLER, SAMUEL, of Virginia, 
 property confiscated, 29. 
 
 MISCELLANEOUS DIVISION of 
 Treasury Department, 66-67. 
 
 NEGROES, treatment of, under 
 lease system in south, 45. 
 
 NEW ORLEANS, Abandoned prop 
 erty in, 44. 
 
 NEW YORK, Confiscation in, 15. 
 
 NOELL, JOHN W., vote regarding 
 confiscation, 11 n. 
 
 NON-INTERCOURSE, regulations 
 pertaining to, 19; 42. 
 
 PARDON AND AMNESTY, Presi 
 dent authorized to declare, 11 ; 
 proclamations, 46 n.; effect on 
 confiscation proceedings, 46 n. ; 
 effect on property held by Freed- 
 men s Bureau, 47; effect upon res 
 toration of captured and aban 
 doned property, 51. 
 
 PERMIT, for collecting cotton, 42; 
 54. 
 
 PERSONA STANDI, 22. 
 
 PLANTATION BUREAU, 44. 
 
 PRIZE, 17; Prize Cases, 21, 29. 
 
 PROCEEDS, from confiscation, 15; 
 from direct tax sales, 34; from 
 captured and abandoned property, 
 43. 
 
 PROCEDURE, in confiscation cases, 
 13 foil. 
 
 PROPERTY, exemption from cap 
 ture, 16; miscellaneous character 
 of, 15 n.; methods of seizing, 13. 
 
 PUFFENDORF, views on confisca 
 tion, 17 n. ; 63. 
 
 REBELS, status of, 19 foil.; stand 
 ing in court, 22. 
 
 REBELLION, character of, 16, 19, 
 29; date of termination, 52. 
 
 REPUBLICANS, in thirty-seventh 
 Congress, attitude on confiscation, 
 11. 
 
 RESTORATION OF PROPERTY, 
 forfeited by direct tax levy, 38; 
 forfeited by judicial process, 46 n. ; 
 provision in pardon proclamation, 
 46 n.; action of Treasury Depart 
 ment, 47; action of Freedmen s 
 Bureau, 47 foil.; action of Court 
 of Claims, 49 foil. 
 
 REVERSIONARY RIGHTS, in con 
 fiscated property, 26 foil. 
 
 RUTHERFORD, views on confisca 
 tion, 17 n.; 63. 
 
 SEIZURE, method of, in judicial 
 confiscation, 13. 
 
 SELECT COMMITTEE, on confisca 
 tion bill in thirty-seventh Con 
 gress, 10. 
 
 SEQUESTRATION, Confederate 
 
 Statute, 8. 
 
 SITUS, bearing of, upon jurisdic 
 tion in confiscation cases, 13. 
 
 SLAVES, not treated in present 
 study iii; included in confiscation 
 law, 8. 
 
 SOLICITOR of the Treasury De 
 partment, Report of, regarding ex 
 tent of confiscation, 15 n. 
 
 SOUTH CAROLINA, Direct tax 
 seizures in, 34, 36 foil. 
 
 SPEED, Attorney-General, policy 
 regarding confiscation after the 
 war. 46 n. 
 
 SPRAGUE, JUSTICE, opinion of, 20. 
 
 STEVENS, THADDEUS, Represent 
 ative from Pennsylvania, alluded 
 to, 8. 
 
INDEX 
 
 71 
 
 STORY, JUSTICE, dissents in Brown 
 
 v. U. S., 18 n. 
 SUPREME COURT, decisions of, 17, 
 
 18, 24, 26, 29, 36, 43, 47, 51, 52. 
 
 TAX, see Direct Tax. 
 
 TENNESSEE, collection of direct 
 tax in, 34. 
 
 TRAITORS, 20 n.; 21. 
 
 TREASON, 12, 20. 
 
 TREASURY DEPARTMENT, or 
 ganization for collecting cap 
 tured property, 40; lease system 
 for abandoned estates, 44; re 
 leases of property by, 47; termi 
 nation of control over captured 
 property, 47; purchase of cotton, 
 53. 
 
 TRUMBULL, LYMAN, Senator from 
 Illinois, action with reference to 
 confiscation bill, 9. 
 
 UNDERWOOD, JUDGE, opinion in 
 
 Latham case, 24. 
 UNION SYMPATHIZERS in the 
 
 South, treatment of, 50. 
 
 UNIONISTS, in thirty-seventh Con 
 gress, attitude on confiscation, 11. 
 
 VATTEL, views on confiscation, 
 
 17 n.; 63. 
 VIRGINIA, confiscation in, 15 n.; 
 
 collection of direct taxes in, 34; 
 
 re-establishment of authority of 
 
 United States in, 46 n. 
 VOTE on confiscation, analysis of, 
 
 11. 
 
 WALLACE, GENERAL LEW, 
 orders seizure of rebel property in 
 Maryland, 14 n. 
 
 WAR CLAIMS, 55. 
 
 WAR POWER, 29. 
 
 WARRANTY, covenant of, 28 n. 
 
 WEST VIRGINIA, seizure of prop 
 erty in, 15. 
 
 WHEATON, HENRY, views on con 
 fiscation, 18 n. ; 63. 
 
 WOOLSEY, THEODORE D., author 
 ity on international law, 64. 
 
TABLE OF CASES 
 
 Alexander s Cotton, (Mrs.), 41 n., 
 
 43 n. 
 
 Amy Warwick case, 20. 
 Armstrong s Foundry, 46 n. 
 Avegne v. Schmidt, 27 n. 
 
 Bigelow v. Forrest, 12 n., 24-25. 
 Briggs v. U. S., 40 n., 43 n. 
 Brown v. U. S., 17 n. 
 Burton v. Smith, 26 n. 
 
 Chaplin v. U. S., 38 n. 
 Confiscation Cases, The, 22 n. 
 Conrad v. Waples, 12 n. 
 Court of Claims, citation of cases, 
 50 n. 
 
 Day v. Micou, 25 n. 
 Glover et al. v. U. S., 38 n. 
 
 Hempstead v. Dickson, 26 n. 
 Hilton v. Guyot, 18 n. 
 Hogarth v. U. S., 38 n. 
 
 111. Cent. R. R. v. Bosworth, 27. 
 
 Jecker v. Montgomery, 22 n. 
 Jenkins v. Collard, 27 fol. 
 
 Kirk v. Lynd, 25 n. 
 Knote v. U. S., 46 n. 
 
 Latham, Hugh, 24. 
 McKee v. U. S., 42 n. 
 
 McVeigh v. U. S., 23, 31. 
 
 Means v. U. S., 38 n. 
 
 Miller v. U. S., 17, 21, 29 fol. 
 
 Ouachita Cotton case, 42 n. 
 
 Paquette Habana, The, 18 n. 
 Prize Cases, The, 21, 29. 
 
 Semmes v. U. S., 46 n. 
 Semple v. U. S., 22 n. 
 Shields v. Schiff, 27 n. 
 
 Tyler v. Defrees, 22 n. 
 
 U. S. v. Anderson, 51 fol. 
 
 U. S. v. Clarke, 25 n. 
 
 U. S. v. Dunnington, 28 n. 
 
 U. S. v. Klein, 51 fol. 
 
 U. S. v. Lee, 36. 
 
 U. S. v. Padelford, 39 n., 51 n. 
 
 U. S. v. Winchester, 40 n. 
 
 U. S. v. 1756 Shares of Stock, 13 n. 
 
 U. S. v. 129 Packages, 42. 
 
 Wallach v. Van Riswick, 12 n., 26 
 
 foL 
 
 Waples v. Hays, 25 n. 
 Ware v. Hylton, 17 n. 
 Whitfield v. U. S., 43 n. 
 Wiley Case, 13 n., 22. 
 Williams v. Bruffy, 21 n. 
 Windsor v. McVeigh, 23 . 
 
 Young v. U. S., 40 n. 
 
 (72) 
 
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