C. Civil War Precedents and Beyond: Forfeiture through 1970

Following the Civil War, the in rem civil forfeiture procedure continued to be employed, with consequences mirroring those seen in earlier years. In an anomalous ruling, however, the Supreme Court in 1886 applied the dictates of the Fourth Amendment search and seizure provisions and the Fifth Amendment’s privilege against self-incrimination by declaring the forfeiture procedures "civil in form" but "in substance and effect" criminal. This ruling, however, remained unique.

In 1896, the Court held that the Sixth Amendment does not apply in forfeiture proceedings because that amendment relates only to criminal prosecutions, of which an in rem forfeiture proceeding was not. Such civil proceedings were again vigorously employed during Prohibition, a period spurred by the perceived crisis of alcohol consumption. By the early 1920s, the Court had determined that the legal fiction of property personification had become entrenched in the law. In fact, it stated that irrespective of the violence the fiction does to constitutional requirements of due process, it was "too firmly fixed in the punitive and remedial jurisprudence of the country to now be displaced."