B. The Confiscation Act of 1862 and Civil War Forfeitures

As seen in the admiralty cases, the need for governmental revenues provides a strong motive for creating broad forfeiture powers. Similarly, forfeiture laws arise most strongly during perceived crises, which cause the public to be persuaded of the necessity for drastic measures to combat an "enemy," real or imagined.

The Confiscation Act of July 17, 1862, passed during the Civil War, authorized in rem procedures against the property of Southern rebels and their sympathizers. Furthermore, similar to the modern forfeiture scheme which redirects proceeds to law enforcement to wage the war on crime, the Act stated that the properties seized were to be used for supporting the Union cause in waging its war.

Opponents of the Act were concerned that seizure was unconstitutional without a prior judicial finding of guilt, that the concept of a forfeiture against the property and not the person was a fiction that no one could reasonably believe, and that the in rem nature of the proceeding unconstitutionally circumvented the rights of accused persons in regular criminal trials. Thus, the arguments against civil asset forfeiture have not really changed over time.

Furthermore, the importance of Illinois Senator Orville Browning’s prophetic warning about the consequences of enacting this Confiscation Act also survives the passage of time:

[A] total revolution [will be] wrought in our criminal jurisprudence, and, in despite of all the safeguards of the Constitution, proceedings in personam for the punishment of crime may be totally ignored, and punishment inflicted against the property alone.

President Lincoln initially shared this objection to the Act’s deprivation of property without a criminal conviction or other protective hearing, but eventually signed it into law. Lincoln continued, however, to consistently express a conviction that the power should be employed only in situations of necessity. Furthermore, Lincoln’s later actions indicate, at least in form, that confiscations were to be only temporary and "restoration of all rights of property," absent intervening third-party interests, was to occur at the conclusion of the war. Lincoln recognized that confiscation should only be an emergency measure and that, upon termination of the emergency, the practice of confiscation should end and seized property should revert to those from whom it was taken. These limitations on the confiscation power were, of course, based in presidential self-restraint. Such abstinence surely should not be presumed.

The Act was really in reply to a Confederate law that confiscated the southern properties of Union supporters. But, the country was embroiled in a civil war: Southern rebels were not simply enemies to whom the government owed no constitutional duty; they were also citizens. Senator Jacob M. Howard of Michigan explained the status of rebels when he declared that the United States was not waging war against "foreign enemies . . . but against persons who owe obedience to this government and are rightfully subject to it." Presumably, if the rebels had an obligation to the United States government, that same government had an obligation to them. But Howard further asserted that certain inflictions of punishment, calculated to repel the violence and rebellion, were lawful.

The Supreme Court, in upholding the Act, argued that extraordinary conditions justified such a law as part of broad military powers. In other words, the exercise of confiscation was a war power and not a criminal measure for the punishment of a crime. Furthermore, the Court argued that the United States retained the powers of both a "belligerent and a sovereign, and had the rights of both" allowing the government to treat the rebels as if they were enemies. It avoided determining whether such measures could be applied to full citizens (that is, citizens without the subsequent enemy status) under normal conditions. As Senator Browning warned, however, the Civil War forfeiture scheme became called on again and again as a handy governmental tool.