Page:Federal Reporter, 1st Series, Volume 9.djvu/338

 THE SiiRATOGA. 323 �"An act to amend the law relative to the seizure and forfeiture of vessela for �breach of the revenue laws. �" Be it enaeted by the senate and house of representatives of the United States of America in congress assembled, that no vessel used by any person or corpora- tion, as common carrier, in the transaction of their business as such commori carriers, shall be subject to seizure or forfeiture by force of the provisions of title 34 of the Revised Statutes of the United Statce, unless it shall appear that the owner or master of such vessel», at tiie time of the alleged illegal act, was a consenting party or privy thereto." �It is admitted that the Saratoga was engaged in the business of a common carrier, and that neither the owners nor the master were "a consenting party or privy to the illegal act" for which the penalty was incurred. The single question presented for decision is whether the word "seizure" used in the act of 1881 embraces seizures by the marshal under legal process for the enforcement of a penalty pursu- ant to section 3088. of the Revised Statutes, or whether it is to be limited exclusively, as daimed on behalf of the United States, to a seizure by revenue officers for the purposes of forfeiture. �Section 3088 of the Revised Statutes, under which the seizuro in this case has been made by the marshal, is a part of title 34, and is as folJows : . �" Whenever a vessel, or the owner or master of a vessel, has become subject to a penalty for a violation of the revenue laws of the United States, such ves- sel shall be holden for the payment of such penalty and may be seized and proceeded against summarily by libel to recover such penalty." �This provision was first enaeted as section 8 of the act of July 18, 1866, entitled "An act further to prevent smuggling, and for other purposes, " and was incorporated in title 84 of the Revised Statutes, as section 3088, with the change of a few words not affecting the question here presented. The penalty here sought to be enforced was incurred under section 3873, which provides that "if any mer- chandise shall be unladen or delivered from any vessel contrary to the preceding section, without a permit, the master of such vessel section, 2874, it is provided that all merchandise so unladen "shall become forfeited, and may be seized, by the officers of the cu.stoms; and where the value thereof shall amount to $400, the vessel, tackle, apparel, and furniture shall be subject to like forfeiture and seizure." �The cigars intended to be smuggled in this case having excoeded the value of $400, the vessel, under section 3874, would have become liable to "forfeiture and seizure" but for the act of 188 1, which, it is conceded, has relieved the vessel from forfeiture, or seizure for the ��� �
 * * * shall be liable to a penalty of $400;" and by the succeeding