particularly active at the time. Among others was Mary Pennington who was the daughter of an ex-mayor of London and very wealthy at the time she espoused the Quaker cause. There were also men like Sir Anthony Ermyn who kept a nonconformist chaplain and held services Sunday and Friday afternoons "where there do resort divers great persons".30 The story of Margaret Fell belongs to this period, and many like her might be mentioned among the patient, suffering Friends. From the letter of a spy we find that "Sir John Knight and another member of the House of Commons, were at a meeting of Strange and Vernon" and expressed dissatisfaction with the present proceeding in Parliament and "that they would adhere to the good old cause".

Among the leaders therefore we find people of excellent parts, men of quality, intellect, and money. But there is nothing to show that any considerable part of the gentry of England espoused the cause or were in sympathy with it. It found its recruits in the lower ranks.

It is thought that these Dissenters were riotous and persistently plotting against the government. The literature does speak of "riotous meetings" and persistent "plottings", but we must think in qualified terms of these riotings and plottings. The Conventicle Proclamation, January 10, 1661, says, "No meetings shall hereafter be permitted unless it be in parochial churches or chapel, or in private houses of private people there inhabiting. All other meetings are unlawful and the persons there assembled shall be proceeded against as riotously assembled." Therefore all quiet meetings for prayer, other than as above described, "were notorious contempts of us and our laws" and were "riotous assemblies ".3: Hence we cannot tell how prevalent "rioting" was, as we use the term, but many of the supposed "riots" can be shown to be nothing but what we should call cottage prayer-meetings.32

In like manner, to the casual reader, the literature seems to show that "plotting" was the daily occupation of the Dissenter. But as in the matter of "riotous assemblies ", so in this, we must take

20 Cal. St. P. Dom., 1666, May 2, no. 7.

31 Proclamations, St. P. Dom., Various, no. 12. They were sent to prison as " rioters " for many strange reasons. A girl was imprisoned as a "rioter" for defending her honor against the actions "of certain rude boys". Book of Sufferings, under Bristol, 1681. See Besse, vol. I., ch. 4, p. 63.

An incident in the life of Baxter is interesting: "It was famed at London that I was in the North, in the Head of a Rebellion. And at Kidderminster I was accused. because there was a Meeting of many Ministers at my House . . . to dine with me." Sylvester, Baxter, pt. II., p. 377. Again, "and every Meeting for Prayer was called a dangerous Meeting for Sedition". Ibid., p. 431.

cognizance of their mode of thought.33 Conventicles were looked upon as breeding places of sedition. Clarendon wrote to the justices. of the peace in Suffolk, "Meetings and conventicles have as their chief end, the confirmation of each in his malace against the Government and in taking of collections to support those who are listed to appear in any desperate undertaking." Therefore the act of meeting seems to have been a kind of plotting.34 The very fact that these meetings were often held "in secret places and at unlawful times" created a bad impression. 'Soverignty is the design, and godliness is the pretence", said Sir William Smith before the grand jury at Hicks Hall. The conventicle on Coleman Street in London had justly confirmed this opinion.

35 66

While much of the plotting reached the authorities through spies a great deal came through intercepted letters that indicated some "desperate design" for a future date. It was not infrequent for postmasters to receive an order which allowed a marshal to search all mail for plots "by certain disaffected persons". In his search he might open a letter announcing some large meeting by the Quakers. The form such a letter would assume has been left us by Bugg:

Dear Friend:

By this thou may'st know, that God willing, Jonathan Johnson and I do intend to be at Milden-Hall Meeting the next First-Day, and shall be glad Friends generally may know thereof, that we may have a good large meeting; I mean, Friends that are afar off in the Country.

R. S.36 Such a letter in the hands of a marshal would easily create suspicion, and it is not improbable that he would put his own inter

Stoughton says, "A few fanatics entertained rebellious designs; but that Presbyterians, Independents, Baptists, or Quakers, either generally or in large numbers, were covering political plots under a veil of religious worship-the point sought to be established-is unfounded surmise, indeed a pure invention." Ecclesiastical History of England, I. 210-211, also, pp. 292–295. See note 37 below.

People dared not even help the ejected ministers lest it should be said they Iwere taking collections for some plot or insurrection". Sylvester, Baxter, pt. II., pp. 385, 386.

35 See also Cal. St. P. Dom., 1662, November 6.

"In

F. Bugg, Pilgrim's Progress, from Quakerism to Christianity, p. 91. that age of sham plots the fabrication of letters was common, of which Captain Yarrington published an exposure in 1681." Stoughton, Ecclesiastical History, I. 212, n. 1. Stoughton cites several cases in which stories of "terrible plots " were put into letters when indeed no plot was contemplated. See vol. II., appendix 1. The so-called "Grand Presbyterian Plot" for which so many were imprisoned, and about which much even to-day is written, can be shown to have had its origin in sham letters. Sylvester, Baxter, pt. II., p. 383. See the two articles by W. C. Abbott, "Conspiracy and Dissent ", in vol. XIV. of the AMERICAN HISTORICAL REVIEW.

pretation upon it since the informer was liberally rewarded.37 In any event he would have the information of an unlawful meeting to which even the people from the country were coming. When these people were taken into custody in this "riotous assembly they would be held as "plotters" under "pretense of religion". This is exactly what happened to Thomas Ellwood when he wrote to his friend Thomas Loe that he had secured a meeting place near by and asked if he could come. The letter was intercepted and carried to Lord Falkland. Ellwood and a number of Quakers were seized as "plotters" and hurried off to prison.38

We do not doubt that individuals and even congregations were at times led to extreme action-especially the Fifth Monarchistsbut we do not think this was true of the Dissenters as a whole. It is recorded by their enemies that they were unusually peaceable.39 Brownley wrote Viscount Conway, "I confess I wonder at the spirit of the Nonconformists. Their ministers preach patience and against forcable resistance." While we do not feel that the Dissenters were a riotous, plotting people, it is very important to see what opinion the authorities held about them in that day. To them, the Dissenters. were a dangerous people against whom strict laws should be passed and this explains why the Clarendon Code was so rigorously executed. But it is well to use care in estimating the severity of the persecution as there is reason to believe it has been greatly overdrawn in many cases.10 The laws governing the release of prisoners and the peculiar religious beliefs of some sects are two things that have proven deceptive in analyzing this question.*

Egerton MSS. 2543.

41

"Life of Thomas Ellwood (Autobiography series, London, 1827), p. 59. same thing in another form is cited in Stoughton, I. 313. See Cal.

Much the

St. P. Dom., 1663, December. Spies were quick in drawing conclusions from things overheard secretly. Cal. St. P. Dom., 1665, August 15.

"Ignoramus Justices, Brit. Museum. St. P. Dom., vol. 99, n. 9.

"Ellwood shows the Quaker prisoners were well provided for by committees appointed to visit the prisons and take them food. They were allowed many privileges while in prison which were not commonly given. Life, pp. 77, 109, 113. He even says that a tramp pretended that he was a Quaker that he might be imprisoned with them. Further, the Report of the Commission on Non-Parochial Registers (1836) shows that up to 1688 the Presbyterians, Baptists, and Independents founded 152 churches. Of this number 109 were founded between

1660 and 1668.

This is strange if the persecution was as severe as is often Of these 109 churches, 72 were Independents, 17 were Presbyterians, were Baptists. To this may be added the frequent kindness of jailors and

asserted.

and 20

the lax enforcement of law by the justices. Cal. St. P. Dom., 1664, January 28, October 24; 1665, March 19.

A table of such fees as are allowed by His Majesties Justices of the Peace " shows how expensive prison life was. See Book of Sufferings, IV. 274, foot-note. Also, ibid., p. 301, wherein it cost one man £44 s. Also Drake, History of the City of York, "Table of fees passed by the Mayor July 1672". "The

We cannot therefore accept the view that Clarendon instituted a religious persecution against Dissent. The Clarendon Code was designed to suppress sedition, but as a rule it was a hardship only to those who openly defied it. Such sects as the Quakers, Anabaptists, and Fifth Monarchists were notorious in this respect and consequently were called "Fanatics". The suffering of the Presbyterians and Independents was not comparable to that of the Fanatics who were fined, imprisoned, deported, and otherwise severely punished. We feel therefore that much has been written about the extreme suffering of the Presbyterians and Independents which did not exist. To attribute to them an equal share in the suffering of the Fanatics would demand that the word Fanatic be applied to them. This is more than the evidence warrants. It is only fair to say that, with the exception of the Fifth Monarchists, the Fanatics were not a riotous, plotting people, but were quite the opposite. However it is important for us to see that they were thought to be a most dangerous people and for this reason the acts of the Clarendon Code were actively enforced against them. Since the number of Fanatics was comparatively small, it follows that the extent of violent suffering under the Clarendon Code was not as great as is generally thought. It is also clear from the Devonshire. House records that the amount of suffering even among the Quakers has been greatly overestimated.

ALBERT CASSELL DUDLEY.

during and tedious imprisonments are chiefly upon the writs De Excom. Cap., upon judgments of Praemunire and upon fines said to be for the King . . . the spiols and excessive distresses are chiefly upon the Conventicle Act; 20 lbs a month; 3 of estates and Qui Tam writs." Tracts, vol "C", no. 206. In their commitment, they were to "remain . . . unless each of them (i. e., of every batch of convicts) should pay a stated fine,-the words of the judgment touching the fine or fines being in each certificat to this effect, nisi quilibet eorum separatim pro seipsis predictis justiciariis solveret etc., pro fine etc.'" "A consequence of this practice was that the richer individuals in a batch of offenders used sometimes to pay the fine of those of their companions in trouble, who were not themselves able or willing to escape detention by a sacrifice of money." Middlesex County Records, III. 348. It must also be remembered that Quakers would not pay a fine and this explains why many of them lay in prison many years. Students are frequently hasty in drawing conclusions from the enlargement of prisoners" so often mentioned. Frequently the condition of freedom was that they had not refused the oath of Allegiance and Supremacy "-very few of the extreme Fanatics would take this oath, hence the number of those set free might be easily overestimated. Also see Sylvester, Baxter, pt. III., p. 60.

SOME LEGAL ASPECTS OF THE CONFISCATION ACTS

OF THE CIVIL WAR

It is the purpose of this article to examine some of the legal problems involved in the enforcement of the federal confiscation acts during the Civil War. So questionable a war measure as the general confiscation of the enemy's private property naturally encountered opposition, and it should not be a matter for surprise that the enactment of these laws occasioned a long and trying parliamentary struggle, while the friction caused by their enforcement proved extremely annoying to the judicial officers of the government. The interpretation of the acts, moreover, presented to the judges of the period tasks which called for more than ordinary intellectual bravery.

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 Chase, who, in 1861,1 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. But a factor of far more influence was the action of the Confederate government in sequestering northern debts. A Confederate 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. 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

1 Finance Report, 1861, pp. 12-13.

3

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.

Statutes at Large, Provisional Government of the Confederate States of America, p. 201.