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 applicable to ordinary judicial proceedings against traitors
are not applicable here; that the Confiscation Act seizes the property
of rebels not in their quality of criminals, but of public enemies; that
it is not an act for the punishment of treason, but for weakening and
subduing an armed rebellion, and securing indemnification for the costs
and damages it has entailed--in short, not a penal statute, but a war
measure; and that the Constitution which gives Congress the right to
make war for the suppression of the rebellion, and to subject the lives
of rebels to the laws of war, gives it the right to subject their
property also to the same laws--putting both out of the protection of
the ordinary laws; and finally that all the objects aimed at by the
measure are legitimated by the principles of public law.
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