Chapter

The Conservative Assault on Confiscation

in The Limits of Sovereignty

Published by University of Chicago Press

Published in print February 2007 | ISBN: 9780226314822
Published online March 2013 | e-ISBN: 9780226314860 | DOI: http://dx.doi.org/10.7208/chicago/9780226314860.003.0004
The Conservative Assault on Confiscation

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On April 18, 1862, Republican Senator Orville Browning, a powerful friend of President Abraham Lincoln, condemned the radical confiscation plan of his Illinois colleague, Lyman Trumbull, and, in a speech before the Senate, blasted confiscation as an unconstitutional infringement on property rights. In this speech, he was clearly siding with the conservative opposition to confiscation. The conservatives mounted a legal attack rejecting Trumbull's formalist use of international law. The central role of moderates and conservatives in the confiscation debates, particularly those from the Republican Party, reveals the growing importance of liberal conceptions of property and of sovereignty between the American Revolution and the Civil War. Conservative arguments had been bolstered in the years before the Civil War by two powerful forces: a Supreme Court attentive to encroachments upon what it considered individual property rights, and legal theorists who maintained that protecting individual property rights was a fundamental function of the state. Chief Justice John Marshall is identified closely with the emergence, in the first three decades of the nineteenth century, of the “vested rights” property doctrine.

Keywords: confiscation; Orville Browning; property rights; Lyman Trumbull; conservatives; sovereignty; property; John Marshall; vested rights; Supreme Court

Chapter.  6217 words. 

Subjects: History of the Americas

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