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.

If these views can be sustained, it follows that Congress was justified
not only in enacting the perpetual confiscation of the _personal_
property of rebels, but need not, and should not, have passed the
explanatory clause prohibiting 'forfeiture of _real_ estate beyond the
natural life' of the rebel. So far as weakening the rebellion,
indemnifying the nation for costs and damages, or the rights and
interests of the heirs of rebels, are concerned, there is no reason in
justice or in policy for the discrimination made between personal and