Obrazy na stronie

it up

compelled, after an examination, to offer an river, which they propose to build this summer, Mr. GRIMES. Then, those in favor of the amendment to allow the building of a bridge | and it is important that they should have the bill from the Treasury Department will vote also at La Crosse, across the river. I shall not authority to erect this bridge. If the bill can nay. make any objection to this amendment if it go over so that it can come up to-inorrow as Mr. SUMNER. Oh, no; that is not so; I provides for the same sized spans which were the unfinished business, I shall not object. am in favor of that bill. required in the bill for bridges at Hannibal and Mr. SUMNER. I will make a motion which Mr. DOOLITTLE. The motion is to postQuincy.

will allow the bill now pending to go over, sub- pone the Mississippi bridge bill, and the SenaThe PRESIDENT pro tempore. The ques-stituting another for the consideration of the tor from Massachusetts moves to take up this tion is on the amendment reported by the com- Senate. I move that the Senate now postpone | Camden and Amboy bill, and the Senator from mittee, to strike out the second section of the the pending and all other orders, and proceed Maine moves to take up the bill to prevent bill and insert a substitute in lieu thereof, with the consideration of House bill No. 11. smuggling. Now, cannot the question be which has been read.

I think we can finish that to-day, if we take | divided, and let it be taken first on the motion The amendment was agreed to.

to postpone, and then on the motion to take Mr. DOOLITTLE. I now ask that this bill Mr. MORRILL. I desire to take up a bill up? I ask for a division of the question, so be postponed until to-morrow; and I make a that is very important, and I appeal to the that the vote may first be had on postponing motion to that effect. I have not bad, and I do Senator to allow me to do so. It is a bill to the Mississippi bridge bill; and then the quesnot know that my colleague has had, an oppor. prevent smuggling, which it is intportant should tion will arise which we will take up, the tunity to look carefully into this matter. It be considered as soon as possible.

Camden and Amboy bill or the bill to prevent very much affects Wisconsin. We will at the Mr. SUMNER. I know the importance of || smuggling. earliest opportunity consult in relation to it the Senator's bill, but I submit that we ought Mr. CONNESS. I hope my friend from and look into the bill, and as I have already not to enter upon that until we have disposed | Massachusetts will withdraw his motion for the stated we may perhaps desire to submit the of this little bill; it is a very short bill. present and let us pass this bill for the prevenamendment to which I have referred.

Mr. MORRILL. As the Senator has not

tion of smuggling. It is an important bill and Mr. NORTON. I hope the Senator from the special charge of the bill which he moves will excite no discussion and will not occupy Wisconsin will not persist in his motion to post- to take up, I cannot appeal to him ; but I had much time; and then I will vote with the Senpone the bill, certainly not with a view to offer a conversation this morning with the chairman ator to take up his bill. I do not want to vote an amendment providing for the building of a of the Committee on Commerce, who has the against him; and I hope he will take this bridge at La Crosse. That is an entirely sep- special charge of it, and obtained his consent, course. The bill of the Senator from Maine arate bridge connecting separate and distinct I thought, to proceed now with the bill to which will not occupy much time, and it is public busiroads. There will be certainly no objection on I have referred and in which he is vastly more ness that ought to be attended to. our part to the passage of a separate bill for interested than I am. It is a bill that ought The PRESIDENT pro tempore. The sugthe building of a bridge at La Crosse, but it to be considered. It is a bill to prevent smug. | gestion that the motion be divided, in the opinseems to me there can be no propriety or neces- gling. The public service is suffering, I am ion of the Chair cannot be granted, inasmuch zity for adding it as an amendment to this bill. told, for the want of it.

as the question is not one that can be divided. This bill is reported from the Committee on Mr. SUMNER. I think we can dispose of The motion of the Senator from Massachusetts Post Offices and Post Roads with the same pro- the other bill to-day.

was to postpone the present and all prior orders visions as to details, the draw, and other matters Mr. MORRILL.' I think it very likely you and proceed to the consideration of a given of construction, that were contained in the bill can, but we can dispose of this also. The Sen- bill." The motion is not susceptible of division, passed a short time since for the building of a ator's bill has passed the other House, and in the opinion of the Chair, in the manner in bridge at Quincy. I hope the Senator will not only needs the consideration of the Senate, which it now comes before the Senate. insist on his motion. If he desires the con- while this bill has received the consideration

Mr. SUMNER. At the suggestion of a friend struction of a bridge at La Crosse, we certainly | of neither House. It is very much demanded, of the bill that I wish to bring forward, folshall make no objection to a bill for that I am told, by the Treasury Department. It is | lowing his suggestion, somewhat against my purpose.

a bill that has occupied a good deal of the Mr. DOOLITTLE. I will state to my hon

own judgment, I withdraw my motion; but I time of the Department and of the committee, wish it understood that I shall renew it here. orable friend from Minnesota that I have not and certainly needs the consideration of this after. given very much attention to this subject, but body at the present time. I thought I had the The PRESIDENT pro tempore. The Senit has been stated to me that the State of consent of the honorable chairman of the com- ator from Massachusetts withdraws his motion, Wisconsin, when application was made to the mittee who takes an interest in the Senator's

and the question now is on the motion of the Legislature, refused to grant to a company the bill, to proceed with this. I suggest to the Senator from Wisconsin to postpone the conright to build a bridge at the point which is Senator that we can vote upon that bill at sideration of the bill before the Senate to referred to in this bill. At the present time || almost any time, and then it will be concluded, || authorize the building of a bridge across the there is no railroad in Wisconsin which reaches while this bill is in its incipiency and requires | Mississippi until to-morrow. the Mississippi river at this point. The great the action of both bodies. hope my friend The motion was agreed to. railroad which reaches across our State, the will allow this bill to be taken up.

PREVENTION OF SMUGGLING. most northern road, reaches the river at La Mr. SUMNER. I am in favor of the bill Crosse. Opposite the Mississippi river at La || which the Senator has in charge, but I under- Mr. MORRILL. I move that the Senate Crosse, as I understand, a railroad is already in stand he is not in favor of the bill which I now now proceed to the consideration of Senate progress which now extends, I think, into Min- move to take up.

bill No. 222, further to prevent smuggling, and nesota some twenty or thirty miles from the Mr. MORRILL. Not exactly.

for other purposes. river, and there is the point where two rail- Mr. SUMNER. Therefore we are not on a The motion was agreed to; and the Senate, roads would communicate if they had a bridge. | perfect equality, I am disposed to be more as in Committee of the Whole, proceeded to But at this point, Winona, there is, as I under- liberal to him than he is to me. It seems to

consider the bill. stand, only a road, commenced at Winona run- me, therefore, the Senator rather takes an The bill was read at length. ning westward into the State of Minnesota. unfair advantage in pressing against me a bill The PRESIDENT pro tempore. The amendThere is not yet any railroad in Wisconsin which he knows I am in favor of when he him- ments reported by the Committee on Commerce reaching the river opposite to Winona.

self is against the bill that I wish to have con- will be read. Mr. HENDERSON. How far is that from sidered. I think, as we have had the bill which Mr. MORRILL. If the Senate will indulge La Crosse ?

I move to take up under consideration so many me, I will make a general statement in regard Mr. DOOLITTLE. About forty miles above days, we had better take it up to-day and finish to this bill, as perhaps I ought to do before the La Crosse. it, and make an end of it.

amendments are acted upon. This measure Mr. HOWE. Twenty-nine miles.

Mr. MORRILL. I do not think you ought was prepared at the Treasury Department; Mr. DOOLITTLE. By the river I think to antagonize that bill against this.

and though the details are pretty extensive, it is forty miles; perhaps in a direct line it is Mr. SUMNER. I know you are against the the changes in the law are not very radical, not more than twenty-nine. I hope my friend bill.

and perhaps they will all be comprehended in from Minnesota will consent to let this bill go Mr. MORRILL. I will try the question, a general statement that the provisions are over. I have no disposition to delay or pre- and if the Senate say so, very well.

intended to alter the several statutes bearing vent action upon it, but I desire that my col- The PRESIDENT pro tempore. The ques.

upon the question of smuggling, from 1791 league and myself shall have an opportunity tion is on the motion of the Senator from Mas- down to the present time. Most of those statto look into it, which, I confess, I have not as sachusetts to postpone the present and all prior | utes are not embodied in this act, and it does yet had the opportunity to do.

orders and proceed to the consideration of the not profess to be a revision of that system, but Mr. NORTON. I have no objection to the bill (H. R. No. 11) to facilitate commercial, is amendatory of the law touching the general bill going over, as the unfinished business, so postal, and military communication among the subject of the acts to prevent smuggling, and that it can come up to-morrow. It is very im. several States.

there are sundry new provisions. These new portant that this bill should pass, for the reason Mr. GRIMES. Do I understand that the provisions apply chiefly to the northern, norththat the company who ask for the privilege of two bills now antagonized against each other | eastern, and northwestern frontiers, and are building this bridge propose to build the road are the Camden and Amboy bill, proposed by || suggested by the relations which have sprung on the east side of the river. There are now the Senator from Massachusetts, and the bill up in a few years past between the British some seventy miles of road running west of the that comes from the Treasury Department to Provinces on this continent and that region river, but there is a distance of about twenty- prevent smuggling on the frontier

of our country. eight miles to build on the east side of the Mr. MORRILL. Yes, sir.

The bill does not seek to change particularly

I am

in any way the officers of the customs.

on conviction thereof before any court of competent then a verdict is to be pronounced against him not aware that it adds new officers or that it jurisdiction, be fined in any sum not exceeding five unless he proves his innocence.

The judge, thousand dollars nor less than fifty dollars, or be imin any way directly changes the compensation. prisoned for any time not exceeding two years, or

therefore, will be bound to tell the jury, “I Mr. JOHNSON. Does it not abolish some? both, at the discretion of such court.

think-it is perfectly immaterial what you Mr. MORRILL. I think not.

The amendment was agreed to.

think-that the man is guilty upon the evidence Mr. JOHNSON. I so understand its reading.

The next amendment was in section four,

already adduced, and you must find him Mr. MORRILL. I believe there is no author

line thirteen, after the word "court,'' to strike | guilty" --that is the necessary result, provided ity to abolish any officers except in a contin

the law is carried out-"you must find him out the following words: gency. The main feature of the bill is to amend

And the guilty knowledge of the defendant, when

guilty, unless he, by evidence, assures you that the statutes to prevent smuggling, according convicted of the fact, shall in all cases be presumed he is not guilty." It seems to me, and I subto the experience of the Treasury Department, unless he or she prove the contrary.

mit it to the honorable member from Maine, to render them more efficient, and to add such And to insert in lieu thereof:

that that is going infinitely further than in any additional sections as have been suggested by And the onus probandi shall lie upon the defendant country that I know of it has ever been supthe exigencies of the times. These are the where probable cause is shown for such prosecution, | posed necessary to go where the rights of the

to be judged of by the court before phom the prosechief features of the bill, and I believe all the cution is had.

individual citizen are regarded at all. We details will be found to fall under this general

Mr.JOHNSON. It seems to me that this is

might all be placed in that situation. statement. The several sections and amend

Mr. MORRILL. Oh, no; it only applies a departure froin all the rules which experience ments thereto, having reference to the old stathas proved to be just and righteous. The object

to smugglers. utes, statutes which are not new, very nearly

Mr. JOHNSON. You might buy goods of the section is to prevent the illegal importaexplain themselves, so that I do not feel called tion of certain articles of merchandise men

from them without knowing it. There are a upon to make any extended explanation of the tioned in it. I think the Senate had better look

few smugglers, perhaps, on the coast of Maine; sections in detail. I shall be glad to explain any at it, for the amendment changes the section

I think it very likely that a great deal of the section to wbich my attention may be called. The PRESIDENT pro tempore. The Seco very materially. The section provides:

smuggling has been in that neighborhood. My

friend might be in Castine and might buy

That if any person shall fraudulently or knowingly retary will read the amendments reported by || import or bring into the United States, or assist in so

goods that had been improperly smuggled in the Committee on Commerce in their order. doing, any goods, wares, or merchandise, contrary to Castine. Suppose he should be prosecuted. The Secretary read the first amendment, law, or shall receive, conceal, buy, sell, or in any

The proof against him would be that the goods manner facilitate the transportion, concealment, or which was in section two, line five, to strike sale of such goods, wares, or merchandise, after their

had been smuggled in and that he had bought out "an officer” and insert "a collector, naval importation, knowing the same to have been imported them. That is a very good ground for proseofficer, or surveyor." contrary to law, such goods, wares, and merchandise

cuting; and the only thing to be proved is, shall be forfeited. The amendment was agreed to.

that he did know (in the absence of this legis

As the bill originally stood, in the event of The next amendment was in section two, a prosecution, it provided that “the guilty | adopt this amendment it is not necessary to

lation) that they were smuggled ; but if you line nine, to strike out the word “other”' before "envelope.

knowledge of the defendant when convicted
of the fact '—that is to say, when convicted of

prove that. They will prove the fact of the The amendment was agreed to. the fact of receiving, buying, or selling, goods || chase, and then call upon him to prove that

illegal importation and the fact of the purThe next amendment was in section two, that had been improperly imported—“shall in he did not know that they were illegally imline eighteen, to strike out the word "impli- all cases be presumed, unless he or she prove | ported; otherwise he would be subjected to cated” and insert the word " engaged." the contrary.” That is contrary to all ideas

the forfeiture. I do not see the occasion for The amendment was agreed to.

of law. The next amendment was in section two,

Mr. MORRILL. That is stricken out.

it. I repeat, that in all cases, no matter what

the character of the offense is, if the proseculine nineteen, after the word “violation,” to

Mr. JOHNSON. I know that is stricken

tion produces evidence which, in the judgment strike out the remainder of the section, in the out. The committee have stricken that out

of reasonable men, under the direction of the following words: because, in the judgment of the committee, it

court, tends to criminate the offender, if the And the Secretary of the Treasury shall have power, is liable to objection; but they substitute for

jury do their duty, unless it can be explained from time to time, to appoint such agents of the Treas- it what, according to my view, makes it almost ury Department as, in his opinion, the exigencies of as obnoxious as the passage they propose to

away, they convict him; but this goes a great the revenue service may require, who shall be enti

way beyond that. It assumes guilt from the tled to such reasonable compensation as he shall pre- strike out. They propose to substitute for it scribe; and the twenty-seventh section of the act

mere fact that the party has bought or sold the following: entitled An act for enrolling and licensing ships

the goods illegally imported, and casts upon and vessels to be employed in the coasting trade and

The onus probandi shall lie upon the defendant fisheries, and for regulating the same,"approved Febwhere probable cause is shown for such prosecution,

him the burden of proving his innocence. to be judged of by the court before whom the prose

Mr. SUMNER. ruary 18, 1793, and the sixty-eighth and seventieth

It seems to me that the sections of the act entitled "An act to regulate the cution is had.

Senator from Maryland exaggerates the charcollection of duties on imports and tonnage," ap

Now, what is probable cause" for a pros- acter of this proposition. No one knows better aproved March 2, 1799, are hereby repealed.

ecution? What must a judge say is probable than that very experienced lawyer, that quesThe amendment was agreed to.

cause? That the goods have been imported | tions of what are called the weight of evidence The next amendment was in section three, contrary to law by somebody, and secondly, or the onus probandi are ordinary questions of line ten, to strike out the word “other” before that the man prosecuted has received or bought law, that is, there is a certain rule of law which the word “envelope.”

or sold them. The fact the illegal importa- determines that under certain circumstances The amendment was agreed to.

tion connected with the fact of the reception || the onus probandi is on the one party or the The next amendment was in section three;

or the buying or the selling the judge may other. I take it that that is only what is called line twenty-five, after the word concealment,

consider as sufficient probable cause to believe common learning; you find it in all the books: to insert the words “and all the equipage,

that the man is guilty, and cast upon him the that the court must determine in advance where trappings, and other appurtenances of such

burden of proving his innocence. I know of the onus probandi is. Now, if I understand

no case in which a rule of evidence so harsh beast, team, or vehicle ;" so that the clause

it, this statute undertakes to determine in ad. will read:

as that has been adopted. It is a very good vance, in certain cases, where the onus proAnd every such vehicle and beast, or either, together

thing to prevent smuggling in order to secure bandi shall be. It lays down a rule in that with teams or other motive power used in conveying,

as much revenue as we can; but it is paying || respect. I admit that the rule may seem to be drawing, or propelling such vehicle, goods, wares, or very dearly if we accomplish that object by somewhat stringent. I admit, also, that it may merchandise, and all other appurtenances, including

breaking down the landmarks which have heretrunks, envelopes, covers, and all ineans of conceal

be a departure from the common practice. But ment, and all the equipage, trappings, and other ap

tofore been supposed by all the jurists of the the question in my mind is, whether when we purtenances of such beast, team, or vehicle shall be country necessary to protect the individual are dealing with cases like those of smuggling, subject to seizure and forfeiture.

citizen against an improper prosecution. we are not justified in making the rule more The amendment was agreed to.

Now, it seems to me, it would be better to stringent and in departing from what may be The next amendment was in section three, leave the case to stand upon the rules of evi- the common practice. I therefore bring the line twenty-seven, after the word “forfeiture,'' dence applicable to all offenses. Why is it question right to that point, and I ask the to strike out the following words:

necessary to say in this case, more than in any | experienced Senator from Maryland whether In like manner as is now by law, or shall be by other case, that the defendant shall have thrown in dealing with smuggling, from all our expethis act, provided in regard to such goods, wares, upon him the burden of proving his innocence? || rience, froin our knowledge of such cases, from or merchandise,

In all cases, if there be proof before the jury the known habit of smugglers to evade all The amendment was agreed to.

reasonably tending to the conviction of the || existing laws and regulations, we are not justiThe next amendment was in section four, offender, because reasonably establishing his fied in bringing, if possible, an increased strinline eight, after the word “law," to insert guilt of the offense, he is called upon to defend gency of rule to bear upon them. I must say "such goods, wares, and merchandige shall be himself. You do not want any additional stat- I think we are.

It seems to me that is what forfeited, and ;'' so that the section will read: ute in order to cast upon the offender who may this statute precisely does. It makes the rule

That if any person shall fraudulently or knowingly be prosecuted the burden, in a case of that more stringent against smugglers. The quesimport or bring into the United States, or assist in description, of proving his innocence; and the tion is whether in making it more stringent so doing, any goods, wares, or merchandise contrary to law, or shall receive, conceal, buy, sell, or in any

object, therefore, of this provision is to place against smuggling there is a departure from manner facilitate the transportation, concealment, him in a much worse situation than he is placed || principle. I have alreauy suggested that it is or sale of such goods, wares, or merchandise after

in now.

Whenever the court, not the jury, their importation, knowing the same to have been

a most common practice to determine in what imported contrary to law, such goods, wares, and

shall think that the man is guilty upon the evi- cases the onus probandi shall be one way or merchandise shall be forfeited, and he or she shall,

dence which the prosecution has produced, the other.


Then we come to the next question here: he fails to explain, the court would say to the Mr. HOWE. If you look at the words it under what circumstances shall the onus pro- jury in such a case as that the burden of proof | would be the burden of proving the complaint. bandi be upon the defendant? It is where is on him, he must explain to your satisfaction, If the judge should say that the district attorprobable cause is shown for such prosecution. and failing to do it, the implication is one of ney had probable cause for commencing the I presume that I do not err when I say that it | guilt.

prosecution, when he gets so far that he can is not a phrase of the common law. Probable Now here this section sets out certain facts: say that, then he must say now the burden cause is not strictly a phrase of the common "any person who shall fraudulently or know- of proof is upon the defendant to establish the law. It is a phrase of the ancient Roman || ingly import”' &c., going on to state the facts complaint to maintain the indictment." I jurisprudence, and derived from the ancient under which certain things may be done, think that is the literal meaning of the amendRoman jurisprudence.

“knowing the same to have been imported | ment; but it probably is not the meaning which Mr. JOHNSON. From the prize law and || contrary to law,”' &c., shall be subject to a the committee intended to give it. But, in the the admiralty law.

penalty. The law provides that he may do that most favorable view you can take of it, it is Mr. SUMNER. Is not the admiralty law | thing properly; he may do it legally and prop- || dividing a single issue into two propositions derived from the Roman jurisprudence? erly; and if he is charged with doing it wrong- and submitting one of them to the court and Mr. JOHNSON. Certainly.

fully, and the facts appear, the facts are pre- | reserving the other to the jury. The court is Mr. SUMNER. It is a phrase of the ancient sented to the court, so that in the judgment of to say, when so much of the case has been Roman jurisprudence, derived from that, enter- the court the burden of proof ought to be on him, | proved as that, if not explained or not controing into the jurisprudence of all continental then precisely in this case, as in the case where || verted by the defendant, the jury must find a Europe, and all that portion of our own juris- a man is charged with larceny, the court may verdict of guilty. That much of the issue is prudence which is dependent upon the ancient say that the burden of proof is on him and they left to the court, and the rest of it is reserved Roman jurisprudence, the admiralty law, as may instruct the jury against him. The burden for the jury. The court says when the prima the Senator from Maryland suggests, and also of proof lies there under the authority of this facie case is made out. The jury is left to say in England the law administered in consisto- statute, unless he vindicates himself. The only when the prima facie case is rebutted. rial courts. Now, in the Roman law, to go difference in the world is that we apply it here The fact of possession is a circumstance back to that, we find that the term probable to a transaction which of itself is legal under | always proper to be submitted to the tribunal cause plays an immense part. There is not a the statute except for the guilty intent; and || to establish the guilt, whether of importing or term in Roman jurisprudence, I presume, more when the facts, in the judgment of the court, || buying with knowledge that the goods were important than that. Where a party could authorize an inference of his guilt, then he is | imported contrary to law; it is a circumstance show "probable cause" for anything that he to stand precisely on the general principle in going to show guilt; it is proper to be submitdid it was a justification. I presume one could criminal proceedings.

ted to the jury; but it is proper for the jury to not err under the law of nations if he said that But this statute is not new; it has existed say what weight should be given to that cira public ship overhauling a merchantman on since 1799 substantially. I will read the pro- cumstance as to every other circumstance. If the ocean, having probable cause to suspect that visions of the act from which I suppose this that is the only circumstance which is proved the ship was not what it purported to be; then provision was taken. It is the act of 1799, in the case, the court cannot help but say that the very fact of probable cause under such cir- || chapter twenty-two, seventy-first section. That there was probable cause for a prosecution; cumstances would be a sufficient defense; so section concludes as follows:

but when the court says that, rings his bell, and important has the rule of probable cause, in "But the onus probandi shall lie on the claimant

says “here is probable cause for the prosecuthe original Roman jurisprudence, and in those only where probable cause is shown for such prose- tion," then he says in effect to the jury. "now different countries who derived their jurispru


to be adjudged of by the court before whom dence from ancient Rome, been regarded. the prosecution is held."

you must from this time forward in the trial

of the cause hold this man guilty until he, takNow, as I understand it, this phrase is im- Mr. JOHNSON. That applies to property. || ing the burden of proof upon himself, satisfies ported into our statutes; it is not unknown in Mr. MORRILL. There is no difference

you by his own evidence, by his own efforts, them before. Of course it occurs constantly in | between that provision and this, except that | by what he shall marshal before you in the our revenue statutes, but there again, I take it, || in the statute of 1799 it applies to property; nature of proof, that he did not know anything it is derived from this same original source. property was proceeded against there, and now about it; until he shows this negative you must Now, it is proposed to declare that where prob- this is a proceeding against the person. The assume the affirmative," the affirmative being able cause is shown for a prosecution, the bur. || principle is precisely the same. It seems to that he did know. That rests upon the allegaden of proof shall be changed. As I have said,

me that in principle it is not so objectionable | tion of the indictment. by that jurisprudence from which the phrase is as is supposed by the Senator from Maryland, Any circumstance, therefore, which shall derived, where probable cause is shown, it is a

and then in practice I am sure that any other induce the court to say that the district attordefense for any authorities in any seizure they || rule would be found to be extremely mischieve ney was not to blame for commencing the prosmake. They do not err. If the seizure be a

ecution, that he had probable cause for comship, or if it be a man, or if it be any article of

Mr. HOWE. I was not able to agree with || mencing the prosecution, any circumstance that property, there is no mistake if the Government the committee upon this amendment, and since | enables the court to say that the district attorshows probable cause; and so, on the other listening to the remarks of the Senator from

ney is not guilty, calls upon the defendant in hand, if there is probable cause to believe a Maryland I am no nearer agreeing with them

fact to prove that he is not guilty. I think this man to be guilty, the burden of evidence under

than I was before. I think if the impropriety is a very great advance upon any rule of evithat jurisprudence absolutely changes and he

of this proposed amendment could be demon- dence that I ever heard of in the trial of crimhas got to bring forward his evidence in order | strated, the Senator from Maryland has dem- inal causes. The Senator from Massachusetts to overthrow that probable cause. onstrated it. There are two ways in which

says we may be justified in adopting more And now, to give a practical application to

this amendment may be regarded. If you look || stringent rules in these cases. all this, it seems to me that in this clause there at the literal import of the words proposed to gling is a very bad thing and ought to be put is simply an attempt, and I must say it seems be inserted here, it seems to me it provides | down; but I do not know that smuggling is a to me a proper attempt, to give an increased what nobody in the world would agree to. I greater crime than burglary, or than murder, stringency to the law for the represssion of am entirely agreed that the words proposed to or than treason. This is a rule of evidence, Í smuggling, by making the showing of probable be struck out should be struck out; so far I || take it, we should not tolerate in the trial of cause the occasion for a change of the onus accede to the amendment; but as to inserting either of those crimes, and I do not know why probandi. I do not think there will be any the words proposed to be inserted, I am utterly we should tolerate it in trying the crime of mistake if we shall adopt it. opposed to it.

smuggling. Mr. MORRILL. The Senator from Massa- The fact to be tried is a single one. It is not

M. EDMUNDS. Mr. President, there is chusetts has said, perhaps, in defense of this the selling of imported goods contrary to law, very great force indeed in the observations proposition all that need be said, except that or the buying of goods which have been im- , which have been submitted by the honorable I desire to call the attention of the Senate to ported contrary to law. These are not crimes, Senator from Maryland in opposition to this the fact that this is not a new provision, and not made so, not regarded so by the section. || amendment of the committee as it stands now, then it seems to me that on the question of the The offense here provided for is the selling || and inasmuch as I was not able to be present burden of proof it is not that departure which or buying imported goods with a knowledge in the committee when this bill was considered, the Senator from Maryland seems to think. It that they were imported in violation of the law. || I venture to offer an amendment to the amendsimply puts the burden of proof on the party It is doing these things, with knowledge of the ment reported by the committee, which I think only when the court shall say under the facts || illegal character of the act. That is what the will relieve it of the objections made by the adduced that the burden of proof ought to lie section is driving at. That is what it is pro- Senator from Maryland, and will put it pre. on him. That is all it says. How does that | posed to punish. The cause upon which the cisely upon the footing of the act of the 2d of differ in principle from the case of larceny? || defendant is arraigned is, for instance, the pur- | March, 1799, which is in force to-day on this Where the goods are found in the possession chasing of goods, or the concealing of goods, subject

, and which has been found in the courts of the party charged, the burden of proof is on or the buying of goods, knowing them to have of the United States to be absolutely indis. him to explain. Suppose he does not explain. | been imported contrary to the law. This amend. pensable in cases of the seizure of smuggled The court would tell the jury undoubtedly in ment proposes to say that the burden of proof | goods. The amendment which I propose is such a case that he having been in possession shall lie on the defendant in case the judge says to insert after the word "probandi” the words of the goods, it is his duty to explain the there is probable cause for the prosecution. "in cases of seizure," and in the same line to charge of having come wrongfully by them; What burden of proof?

strike out the word " defendant" and insert they are lost; they are found on him; now if Mr. BUCKALEW. It does not tell what. the word "claimant,'' so that the amendment,


I think smug.



if adopted, will cause the section to read “and and in such case as that the statute declares this section, it is put there for the very purpose the onus probandi in cases of seizure shall lie that the party sueing, the alleged claimant, of being conclusive. It is to tell the jury virupon the claimant where probable cause is shall make out his case. There is no doubt | tually, “The man is guilty unless he satisfies shown for such prosecution,' &c.

about that, and the latter part of the section you that he is inuocent." The act of 1799, which may be called the to which my friend from Maine adverted is Mr. EDMUNDS. With all respect, sir, I constitutional basis of all our revenue and intended merely as an explanation of that part cannot help thinking that my friend from Maryimportation laws, provides, in the seventy-first || which I have just read. It says this:

land is the person who misapprehends the scope section, the following rule of evidence in causes “But the onus probandi shall lie on the claimant of this clause of the seventy-first section of the of this nature:

only where probable cause is shown for such prose- act of 1799 rather than myself. The language “In actions, suits, or informations to be brought cution."

which operates upon this subject is " actions, where any seizure may be made pursuant to this act, That is for the benefit of the claimant. If || suits, or informations." The term "informaif the property be claimed by any person, in every such case the onus probandi shall lie upon such claim

the claimant sues and the defendant does not tions," as used in this act against property

show probable cause, he is not compelled to where any seizure is made pursuant to the act, And in a succeeding part of the section: prove anything; but if the defendant does show

is a technical term perfectly well known to the “But the onus probandi shall lie on the claimant that there was probable cause for the seizure, law and to lawyers. It is what is in the admi. only where probable cause is shown for such prose- then the onus probandi is cast upon the claim- ralty practice, in the cases of seizure in rem, cution to be adjudged of by the court before whom ant. But that is not this case. Here is a called a libel of information; but in the more the prosecution is had."

prosecution against a person for a penalty. | condensed language of the statute it is simply It is well known by everybody who has had

He may be confined and imprisoned under the termed an information. When goods are seized any experience in the prosecution or defense provisions of this act. Now, what says the by a customs officer for a breach of the revenue of these seizure causes that the most which

statute? Prove all that the Government need laws an information is filed against them; and the Government, in ninety-nine cases in a hun

prove; prove the importation; prove the buy. | if any party fails to come forward and claim dred, can do is to prove the unlawful importa- || ing or the selling; prove the possession by the the goods they are condemned without any tion presumptively; that is, to prove the fact || defendant who is prosecuted of the goods hearing at all upon the mere seizure. If any that the particular goods in question have been proved to have been imported; and then he is introduced into the United States without the || guilty-not a matter to be left to the jury, but

person comes forward, according to the rules

of the court, and makes oath that he is the payment of duty; and then, pursuant to the so far the whole matter is with the court. If owner of the goods, he is then entitled to enter act of 1799, it is the duty of the court to call the court is satisfied that the case as it stands his claim; and the term "claimant" is a techupon the defendant to show a reasonable ground upon the evidence offered on the part of the nical term perfectly well understood by everyof excuse or exculpation against the prima prosecution presents a probable cause of guilt, || body who practices in those courts as indicating, facie presumption which the illegal importa- then it is made the duty of the court to tell the not the plaintiff in an action at common law, tion without the payment of duty ought justly jury "the case now stands in that situation not the defendant in an action of trover or tresto ise.

that there must be a verdict of guilty unless It has been found in practice, and in my

pass, but the party in a court of admiralty who, the defendant satisfies you of his innocence." in a proceeding in rem, comes upon the record knowledge within the short period of my ac- I say that that is contrary to anything to be as making a formal claim to the property. quaintance with legal affairs, it has been prac. found in the books, as far as my recollection My conclusion, therefore, is that these proticed constantiy—that a clause of the descripgoes.

visions of the act of 1799 respecting the onus tion which I now name has not been only The honorable member from Massachusetts | probandi in cases of seizure being upon the useful but indispensable to the Government, || said very properly that the term “probable claimant, are provisions which by the very letwithout being in the least degree prejudicial

is not so familiar to common-law law- ter as well as the spirit of the act apply to prosand injurious to any just claimant who has not yers as to those familiar with the Roman law.

ecutions against the property itself where a really and truly intended to evade the laws Therefore it appears

He seemed to suppose that that phrase was not providing the revenue.

claimant, technically and legally known as such, known to the common law. In that I think he appears in court and claims the property. In to me that if we adopt the amendment which is mistaken. Those words are in our statutes; those cases, if I correctly understand the act I have suggested, and leave it on the basis of

they are familiar in cases of prize and in all of 1799, probable cause having been made out the act of 1799, we shall put the law in a posi. cases of admiralty.

on the part of the prosecution, the onus protion where nobody can reasonably find fault Mr. SUMNER. Under the Roman law. bandi is then turned over to the claimant who with it.

Mr. JOHNSON. If a party seizes a vessel asks that the property may be delivered to him, Mr. JOHNSON. With due deference to my

during war, or seizes her under the revenue to explain the circumstances under which he friend from Maine and my friend from Ver- acts, and he is sued by the alleged owner, who introduced it. mont, I think they misapprehend the act of

proves to be the real owner, he escapes per- Now, what is probable cause?" It is very 1799 altogether, if they suppose that the prin- sonal responsibility by proving to the satisfac- difficult to define the distinction between the ciple contained in that act in the section re- tion of the judge that he had probable cause ferred to justifies such a provision as is the one

meaning of the term “probable cause'' and the for the seizure; and the certificate of that prob- meaning of the term “prima facie evidence." now before the Senate. The act of 1799 in the

able cause is a defense in any action which may section referred to, which is, I suppose, the only || be brought forward by the owner of the goods | lawyer to make any sensible and satisfactory

It would puzzle anybody except a Philadelphia one in the law supposed to bear at all on the

to recover damages sustained by him in conse- distinction between these two terms. Then in subject before the Senate, provides for two

quence of the seizure. That is for the protec- a case of property-I leave aside, for a moment, classes of cases. The first is, that if any officer

tion of the officers of the Government, and is a entirely that part of it which relates to conseizing goods is sued he may give the act in

wise provision. They would be very unwilling | demnation and fine as to the person-is it too evidence to show the authority under which he

to capture vessels as prizes of war, or to seize hard to say to a claimant who comes into court was acting. Where he is sued or molested for

them for an alleged violation of the revenue and asks that property may be delivered up to anything that he does by virtue of the act, in

acts if they were to be responsible on the con- him, prima facie evidence having been brought defense of such suit the provision is that he tingency that it should turn that the vessel forward on the part of the Government that the may give in evidence under the general issue this act and the special matter that he may be

was not prize of war or if there was no ground property is justly subject to forfeiture, "You

for the seizure. But that is not this case, nor shall not be entitled to receive it out of court able to submit. In order to protect the officer || anything like it. Under the desire to pre- | again until you bring forward some proof to against improper suits by persons who may find fault with what the officer is doing, it gives to

vent smuggling-an object that we all have at meet this prima facie or probable evidence the officer, who becomes the defendant in such || change all the rules of evidence. The honor:

heart—it is proposed by this bill, as I think, to which has been adduced against you?" In my suits of course, in the event that the plaintiff | able member says that the judge is in the habit

judgment it certainly is not. fails, double costs; and then it provides

Then the question is whether this bill which frequently of stating in the trial of cases before we have under consideration goes beyond the “And in actions, guits,orinformations to be brought, him upon whom is the burden of proof cast. act of 1799; and I may say, indeed, before I where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every

That is true; but does he say that to the jury in come to that, that my experience on the border such case the onus probandi shall lio upon such a criminal case? Has he any right in a crim- in the practice in the circuit and district courts claimant."

inal case to tell the jury, "In my opinion the of the United States, presided over by Judge What is that? The officer seizes goods and man is guilty?! In a civil case, if the judge | Smalley and Judge Nelson, has been precisely he is sued in an action of replevin or any pos- thinks, upon the evidence, that the case as it in accordance with the construction which I sessory action, or he is sued in an action of stands in point of law casts upon the defend. || put upon the act of 1799. When I began, not trover; and then the law provides, as it has a ant the burden of proving his defense, or that many years ago, in those courts, I was quite as clear right to provide—such was the law be- it stands in such a situation that it casts on the restive with my cominon-law education about fore-that in such a case as that, the claimant | plaintiff the burden, changes the onus, he tells this notion of the onus probandi being upon being plaintiff is to make out his own case. the jury so; but that is a question of law which the party whose goods were seized as anybody He is to prove that the goods were his, and be may be carried up to the courts above, and his could be ; I did not like it; my clients did not is to prove that they were not improperly im. mistake corrected if he happens to make a like it, for I generally appeared for the claimported. The officer, being authorized expressly mistake. This, however, cannot be carried ants, not being district attorney; but the invaby the terips of the act to rely upon the act and -up; there is no review of this; the judgınent riable practice in that district (and I have no upon special matter in his defense, is in posses- of the judge below is conclusive in the sense doubt in the southern district of New York, sion of the goods, and he is sued by the alleged || that it cannot be reviewed, and it is conclusive where very large numbers of these cases occur) owner to recover the goods or in damages; upon the action of the jury. If I understand II has been, as a matter of course, without debate,


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to apply the provisions which I have read from | impose upon the man having the counterfeit | expedients that are resorted to by men engaged the act of 1799 to every cause of prosecution | bill the onus of the proof showing that he did in this business, this is not a rule too stringent against property under the revenue acts; and not know that it was counterfeit. It is a case and it will be found to operate well in pracprobable cause being shown, to then call upon more analogous to this than the one put by the tice. the defendant to overcome it if he could. Senator, I think.

Mr. CONNESS. Mr. President, if the illusNow, to come to the act which we have in Mr. WILLIAMS. I think not, because the trations given by the honorable Senator from question; this fourth section provides for two case which I put is the case where a man is Oregon were to be taken as an exemplification descriptions of things: one is the forfeiture of found in the possession of goods to which he of how this section was to be applied, I should merchandise which may be illegally imported, | has no right by law, and in this case the man hesitate very much before I should vote for the and the other is the punishment of the person is found in the possession of goods to which || proposed amendment. The honorable Senator who shall be guilty of the illegal and fraudulent he has no right by law, so that the cases, as it says that the captains of ships and the owners importation. So far as the application of this seems to me, are analogous cases.

of ships must be made responsible when they rule of evidence to a case of distinct prosecu- Upon the northwestern frontier it is custom- | bring goods into the country which are contration against a person by which he may be de- ary for persons to go on board vessels at Vic- band goods, which are dutiable, but upon which prived of his liberty is concerned, I entirely toria and come around to Portland with trunks the duties have not been paid ; that they must agree to what has been said by the Senator and packages, and to violate the revenue laws be subject to punishment. I think he gives us from Maryland that it is going beyond what the in that way; and when a prosecution is com- an illustration that would, in the cases to which law has been hitherto and is going beyond the menced against the master of the vessel, al- he calls our attention, prohibit all trade whatjust principles which ought to furnish security though the fact of the importation contrary to I submit to the Senator himself, in rein cases where liberty is involved; but when law is established as a general rule, the defense gard to the ships trading between Oregon and you limit it, as my amendment proposes to limit that he makes is that he was ignorant of the the British port of Victoria, in British Columit, to cases of seizure of goods provided for in fact that the goods were brought upon his bia, and between that port and the ports of that section, and to cases where a party volun- vessel or that they were brought into the port || California, that it is simply impossible for the tarily appears in court and claims the property, of Portland contrary to the law. Now, if the captains of those vessels to know the contents then it appears to me that it is not asking too | law be that the fact that he has imported those of every trunk that comes on board. How can much to require such a claimant, probable cause goods in violation of the law is probable cause it be done? Must a captain demand that every having been made out against the property, to of prosecution, and he understands it to be the trunk and every package shall be opened before introduce some proof in to authorize the law, then it will make him diligent, and when it goes on his ship? I apprehend not; and yet

if a trunk is found to contain opium when it all cases of admiralty seizure, of maritime juris- see to it that they are goods that can be trans- arrives at Portland in Oregon, or San Frandiction, that is not a question for a jury at all; | ported, or on which the duties are paid, and cisco in California, in possession of a passenit is only in cases of municipal seizure that a that they are not brought into the ports of the ger without the knowledge of the captain, it jury has anything to do with it; so that with United States contrary to law.

being impossible for him

to know, he having the amendment which I have had the honor to In that respect I think this provision will be exercised all the vigilance possiblesubmit it appears to me that we are only stand. of advantage. It will make it necessary for

Mr. JOHNSON. In a passenger's private ing exactly upon the theory and practice under masters and those who have the management | baggage? the act of 1799. of ships to be more diligent to prevent smug:

Mr. CONNESS. In his private baggage I Mr. WILLIAMS. Mr. President, I feel a gling. Trunks of opium, for instance, are taken am speaking of. His ship is at stake ; although little interest in this bill as I live on the north- on ships at Victoria and brought to Portland. his ship may not be forfeited by the law, he western frontier where there is more or less of When the master of the vessel is prosecuted | knows that he will be subject to continuous and the business of smuggling, and I know that for smuggling, the fact that a trunk filled with expensive prosecutions and litigations with all there is a necessity for stringent legislation opium has been brought from a British port to the diligence that he can exercise; and incited upon that subject. I believe that this amend- an American port contrary to law is undeni. by these consequences, he is yet to be held ment which is proposed by the Committee on able, but the master undertakes to defend him. responsible. I think it would be the interest Commerce to this bill is not objectionable, and self upon the ground that he was ignorant, that of every man to put his money into something I am not very certain that the bill as it origin- he did not know that there were such goods on else than into American ships under such ally stood would be too strong in its applica- board his vessel, and if he is inattentive to circumstances. tion to cases of this description. To import his duties he may successfully make that de

Mr. WILLIAMS. The Senator will allow goods into the United States is a lawful busi- fense; but if, when the fact is established that me to say that is not my position. I siinply ness, though goods may be imported contrary he has imported these goods contrary to law, say that he ought to be responsible unless he to law, and in that respect the business of he is then compelled to show that he did not can show that he was ignorant of the fact, and importation stands upon a different footing, as know that the goods were on board the ship, || therefore innocent. When the master of a it appears to me, from other kinds of business

it seems to me that he will be more diligent | vessel imports goods into the United States to which reference has been made during this and take more pains to see that the laws of the contrary to law, the onus of proving his innodiscussion for illustration. Larceny is not a country are maintained in this respect.

cence ought to be upon the master, in my lawful business, burglary is not a lawful busi. It seems to me that to declare that when || opinion. ness, arson is not a lawful business; but the probable cause for the prosecution is estab- Mr. CONNESS. Does the Senator not use importation of goods is a lawful business, and lished the onus probandi shall be on the de- a term not exactly the best there, when he speaks therefore there is greater difficulty in detecting fendant, is not a proposition that is objection- of the master of a vessel importing goods? a violation of law in that business than under able as urged by gentlemen who oppose it, and The master of a vessel commands the ship. other circumstances that have been suggested that in cases of this description it is absolutely | The cargo is taken on board. The cargo conby those who'object to this amendment. This necessary. Possession of the goods by the man sists of goods imported by merchants in Portamendment, as I understand it, where probable who transports them or by any person after land or in San Francisco. They are the cause appears for a prosecution, transfers the they are transported is probable cause if the importers. They know the contents of the onus probandi to the defendant. I do not goods are found in his possession within a rea- cargo. The captain cannot possibly know; he think that this provision contravenes the pro- sonable time. That constitutes probable cause; is not the importer in any sense as I understand visions of law applicable to criminal prosecu. and what does the court say to the jury when it. He simply commands the ship and sees tions in other cases as has been suggested. a man is prosecuted for smuggling or pros- that his ship is safe from port to port. It is Now, where a man is prosecuted for larceny ecuted for assisting in smuggling and the fact true that the law holds him not to be in comand has possession of the stolen goods within appears to the court and jury that these goods | plicity with the violation of the revenue laws, a reasonable time after the commission of the after their arrival at the port were in the pos- and that is right. But if he have no such comcrime, that time is presumptive evidence of his session of the individual prosecuted? Now, the || plicity at all, why shall you construct a law that guilt, and it becomes necessary for him to court say "the possession of these goods at shall hold him for knowing the contents of explain that possession and rebut the pre- this time, within a short time after they arrive every private package brought on board of his sumption which arises from that fact. Where in the port, is probable cause." If a long time || ship? * If that were the effect of this amendgoods have been imported contrary to law, and elapsed, their possession would not amount to ment I could not vote for it; but I do not they are found soon after their importation in probable cause, as in a case of larceny; but so understand the amendment. I may misuna man's possession, this amendment simply if the goods that are smuggled into the port | derstand it, but if that be its effect I think it requires him to explain that possession and are found soon after in the possession of an ought not to be adopted. All that the laws of show how he came to have in his hands goods individual who is prosecuted for a violation of the United States can hold our ship-masters and that had been imported contrary to law. this law, the court would say to the jury, "Gen- || ship-owners to is the honest exercise of all the

Mr. CLARK. Suppose the Senator should tlemen, this fact that the goods were in the vigilance that they can employ to prevent smugturn his attention to the case of a man who has possession of this man is probable cause for gling. When they have yielded that much, counterfeit money in his possession, which is the prosecution, and it is necessary that he || they should certainly not be held responsible an offense where there is an intent to pass it, should explain this possession and show that | further than that. would it be quite just to impose the burden of it is consistent with his innocence."

The PRESIDING OFFICER, (Mr. Harris proof on the man who happened to have the That is all, it seems to me, that this provis. in the chair.) The question is on the amendmoney? A man may buy an article which has ion amounts to, and it is not an unreasonable ment offered by the Senator from Vermont (Mr. been imported contrary to law, not knowing it, provision; and I think that, considering the EDMUNDS] to the amendment of the committee in the same way that he may have a counter- difficulties in maintaining prosecutions for vio- to insert after the word "probandi' the words feit bill and not know it. The law does not lations of this law and the various arts and “in cases of seizure," and to strike out the

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