erm _forfeiture_ certainly
having that extent of application in the old English law and practice,
from which the framers of our Constitution took it, and there is nothing
elsewhere in the Constitution or in its history to warrant any other
construction. So the Congress of 1790 understood it in the act
declaring the punishment of treason and some other high crimes. As to
the _perpetuity_ of forfeiture, it seems equally necessary to hold that
it is prohibited by the clause of the Constitution in question. Such is
undeniably the first and obvious meaning of the terms. It has been
argued indeed that it was not the intention of the framers of the
Constitution to prohibit perpetual forfeiture of property from being
'declared' by Congress, but only to prohibit 'attainder of treason' from
'working' of itself that effect by necessary consequence--as it did
under the Common Law of England. It has also been argued that the
constitutional restriction does not relate to perpetuity of forfeiture,
but only requires that the forfeiture or act of alienation take place,
have effect, and be accomplished 'during the life of the person
attainted,' and not after his death.

But this reasoning is more subtile than satisfactory. A fair
consideration of the subject leaves little room for doubt that the
framers of the Constitution had in view and intended to prohibit
everything which under the old English common law followed upon
'attainder of treason'--to prohibit forfeiture in perpetuity of property
of every sort, no less than 'bills of attainder,' 'corruption of blood,'
and barbarities of punishment, such as disembowelling, quartering, etc.

If therefore the constitutional restriction on forfeiture apply to the
Confiscation Law, it makes the law unconstitutional, in so far as it
enacts the _perpetual_ forfeiture of the personal estate of rebels; and
the discrimination made in regard to their real estate does not save the
constitutionality of the act.

If, therefore, the Confiscation Law is to be held as constitutional, it
can be so, as it seems to us, only on the ground that it does not fall
within the scope of the constitutional prohibition in question. This
ground may be maintained by asserting that the constitutional
prohibition of perpetual forfeiture applies only to cases of 'attainder
of treason,' that is, according to Blackstone, of 'judgment of death for
treason,' and that cases under this act are not such; that the
limitations app