[2] If the clause of the Constitution
prohibiting 'attainder of treason to work forfeiture except during the
life of the person attainted,' be necessarily applicable to the
Confiscation Act, it seems to us impossible to avoid the conclusion that
the act is unconstitutional. So far as the language of the prohibition
is decisive of anything, it must be taken to include all sorts of
property, real as well as personal--the term _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.
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