Page:Federal Reporter, 1st Series, Volume 9.djvu/343

 328 FKDBEAL REPORTER. �niences arising from any uunecessary seizure and detention of vessels engagea upon the great highways of commerce and travel. �It IB urged on the part of the libellant that it "does not seem reasonable and just to relieve the ship from the burden of the lien, and leave her master still liable for the penalties." But the pen- alties to which masters, though innocent, are made liable in the cases of smuggling are based upon necessary grounds of public policy, as Story, J., bas pointed out in the cases of The Schooner Harmony, 1 Gall. 128, and The Schooner Industry, 1 Gall. 114, to prevent collu- sion on the part of masters, and to insure vigilant watchfulness and integrity in the prompt interdiction of illegal traffic. These penalties have remained substantially the same through nearly the entire history of the government. Act March 2, 1799. But it was not until the act of July 18, 1866, so far as I can ascertain, that the ship also could be held for these penalties, or seized for their re- covery. The liability of the master remains precisely as it bas ever been since the act of March 2, 1799, resting upon the grounds of public necessity. Prior to 1866 the master's liability for all these penalties was deemed sufficient. The act of 1881, in relieving a common-carrier ship from liability for acts of whioh master and own- ers are innocent, as, in my judgment, it does, simply places the gov- ernment in the same position in regard to penalties for such acts, and leaves it with the same rights and remedies, therefore, that it had held for 67 years prior to the act of 1866. �Congress might well consider that the old penalties to which mas- ters still remain liable are sufiBcient to insure good faith and all that public policy demands, where it does not appear that either the own- ers or master were a consenting party or privy to the illegal acts; and that the additional liability of the vessel to seizure first imposed by the act of 1866, with the public or private inconveniences incident thereto in the case of innocent common carriers, shall not be longer imposed. And such, I think, was its intent. �3. Had it been intended by congress to give relief in cases of for- feiture only, the words "seizure or" in the act of 1881 would have been uimecessary. The word "forfeiture" alone would have been sufficient. There can be no seizure by revenue of&cers except where forfeiture is declared by statute. The Missouri, 3 Ben. 508. Seizure by them is merely the first step in proceedings for forfeiture, and whenever forfeiture is declared it is their duty to make seizure for that purpose. But if forfeiture is forbidden there can be no seizure ��� �