compelled, after an examination, to offer an amendment to allow the building of a bridge also at La Crosse, across the river. I shall not make any objection to this amendment if it provides for the same sized spans which were required in the bill for bridges at Hannibal and Quincy.

The PRESIDENT pro tempore. The question is on the amendment reported by the committee, to strike out the second section of the bill and insert a substitute in lieu thereof, which has been read.

The amendment was agreed to.

Mr. DOOLITTLE. I now ask that this bill be postponed until to-morrow; and I make a motion to that effect. I have not had, and I do not know that my colleague has had, an opportunity to look carefully into this matter. It very much affects Wisconsin. We will at the earliest opportunity consult in relation to it and look into the bill, and as I have already stated we may perhaps desire to submit the amendment to which I have referred.

Mr. NORTON. I hope the Senator from Wisconsin will not persist in his motion to postpone the bill, certainly not with a view to offer an amendment providing for the building of a bridge at La Crosse. That is an entirely separate bridge connecting separate and distinct roads. There will be certainly no objection on our part to the passage of a separate bill for the building of a bridge at La Crosse, but it seems to me there can be no propriety or necessity for adding it as an amendment to this bill. This bill is reported from the Committee on Post Offices and Post Roads with the same provisions as to details, the draw, and other matters of construction, that were contained in the bill passed a short time since for the building of a bridge at Quincy. I hope the Senator will not insist on his motion. If he desires the construction of a bridge at La Crosse, we certainly shall make no objection to a bill for that purpose.

Mr. DOOLITTLE. I will state to my honorable friend from Minnesota that I have not given very much attention to this subject, but it has been stated to me that the State of Wisconsin, when application was made to the Legislature, refused to grant to a company the right to build a bridge at the point which is referred to in this bill. At the present time there is no railroad in Wisconsin which reaches the Mississippi river at this point. The great railroad which reaches across our State, the most northern road, reaches the river at La Crosse. Opposite the Mississippi river at La Crosse, as I understand, a railroad is already in progress which now extends, I think, into Minnesota some twenty or thirty miles from the river, and there is the point where two railroads would communicate if they had a bridge. But at this point, Winona, there is, as I understand, only a road, commenced at Winona running westward into the State of Minnesota. There is not yet any railroad in Wisconsin reaching the river opposite to Winona.

Mr. HENDERSON. How far is that from La Crosse?

Mr. DOOLITTLE. About forty miles above La Crosse.

Mr. HOWE. Twenty-nine miles. Mr. DOOLITTLE. By the river I think it is forty miles; perhaps in a direct line it is not more than twenty-nine. I hope my friend from Minnesota will consent to let this bill go over. I have no disposition to delay or prevent action upon it, but I desire that my colleague and myself shall have an opportunity to look into it, which, I confess, I have not as yet had the opportunity to do.

Mr. NORTON. I have no objection to the bill going over, as the unfinished business, so that it can come up to-morrow. It is very important that this bill should pass, for the reason that the company who ask for the privilege of building this bridge propose to build the road on the east side of the river. There are now some seventy miles of road running west of the river, but there is a distance of about twentyeight miles to build on the east side of the

river, which they propose to build this summer, and it is important that they should have the authority to erect this bridge. If the bill can go over so that it can come up to-morrow as the unfinished business, I shall not object.

Mr. SUMNER. I will make a motion which will allow the bill now pending to go over, substituting another for the consideration of the Senate. I move that the Senate now postpone the pending and all other orders, and proceed with the consideration of House bill No. 11. I think we can finish that to-day, if we take it up.

Mr. MORRILL. I desire to take up a bill that is very important, and I appeal to the Senator to allow me to do so. It is a bill to prevent smuggling, which it is important should be considered as soon as possible.

Mr. SUMNER. I know the importance of the Senator's bill, but I submit that we ought not to enter upon that until we have disposed of this little bill; it is a very short bill.

Mr. MORRILL. As the Senator has not the special charge of the bill which he moves to take up, I cannot appeal to him; but I had a conversation this morning with the chairman of the Committee on Commerce, who has the special charge of it, and obtained his consent, I thought, to proceed now with the bill to which I have referred and in which he is vastly more interested than I am. It is a bill that ought to be considered. It is a bill to prevent smuggling. The public service is suffering, I am told, for the want of it.

Mr. SUMNER. I think we can dispose of the other bill to-day.

Mr. MORRILL. I think it very likely you can, but we can dispose of this also. The Senator's bill has passed the other House, and only needs the consideration of the Senate, while this bill has received the consideration of neither House. It is very much demanded, I am told, by the Treasury Department. It is a bill that has occupied a good deal of the time of the Department and of the committee, and certainly needs the consideration of this body at the present time. I thought I had the consent of the honorable chairman of the committee who takes an interest in the Senator's bill, to proceed with this. I suggest to the Senator that we can vote upon that bill at almost any time, and then it will be concluded, while this bill is in its incipiency and requires the action of both bodies. I hope my friend will allow this bill to be taken up.

Mr. SUMNER. I am in favor of the bill which the Senator has in charge, but I understand he is not in favor of the bill which I now move to take up.

Mr. MORRILL. Not exactly. Mr. SUMNER. Therefore we are not on a perfect equality. I am disposed to be more liberal to him than he is to me. It seems to me, therefore, the Senator rather takes an unfair advantage in pressing against me a bill which he knows I am in favor of when he himself is against the bill that I wish to have considered. I think, as we have had the bill which I move to take up under consideration so many days, we had better take it up to-day and finish it, and make an end of it.

Mr. MORRILL. I do not think you ought to antagonize that bill against this.

Mr. SUMNER. I know you are against the bill.

Mr. MORRILL. I will try the question, and if the Senate say so, very well.

The PRESIDENT pro tempore. The question is on the motion of the Senator from Massachusetts to postpone the present and all prior orders and proceed to the consideration of the bill (H. R. No. 11) to facilitate commercial, postal, and military communication among the several States.

Mr. GRIMES. Do I understand that the two bills now antagonized against each other are the Camden and Amboy bill, proposed by the Senator from Massachusetts, and the bill that comes from the Treasury Department to prevent smuggling on the frontier? Mr. MORRILL. Yes, sir.

Mr. GRIMES. Then, those in favor of the bill from the Treasury Department will vote nay.

Mr. SUMNER. Oh, no; that is not so; I am in favor of that bill.

Mr. DOOLITTLE. The motion is to postpone the Mississippi bridge bill, and the Senator from Massachusetts moves to take up this Camden and Amboy bill, and the Senator from Maine moves to take up the bill to prevent smuggling. Now, cannot the question be divided, and let it be taken first on the motion to postpone, and then on the motion to take up? I ask for a division of the question, so that the vote may first be had on postponing the Mississippi bridge bill; and then the question will arise which we will take up, the Camden and Amboy bill or the bill to prevent smuggling.

Mr. CONNESS. I hope my friend from Massachusetts will withdraw his motion for the present and let us pass this bill for the prevention of smuggling. It is an important bill and will excite no discussion and will not occupy much time; and then I will vote with the Senator to take up his bill. I do not want to vote against him; and I hope he will take this course. The bill of the Senator from Maine will not occupy much time, and it is public business that ought to be attended to.

The PRESIDENT pro tempore. The suggestion that the motion be divided, in the opinion of the Chair cannot be granted, inasmuch as the question is not one that can be divided. The motion of the Senator from Massachusetts was to postpone the present and all prior orders and proceed to the consideration of a given bill. The motion is not susceptible of division, in the opinion of the Chair, in the manner in which it now comes before the Senate.

Mr. SUMNER. At the suggestion of a friend of the bill that I wish to bring forward, following his suggestion, somewhat against my own judgment, I withdraw my motion; but I wish it understood that I shall renew it hereafter.

The PRESIDENT pro tempore. The Senator from Massachusetts withdraws his motion, and the question now is on the motion of the Senator from Wisconsin to postpone the consideration of the bill before the Senate to authorize the building of a bridge across the Mississippi until to-morrow. The motion was agreed to.

PREVENTION OF SMUGGLING.

Mr. MORRILL. I move that the Senate now proceed to the consideration of Senate bill No. 222, further to prevent smuggling, and for other purposes.

The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill.

The bill was read at length.

The PRESIDENT pro tempore. The amendments reported by the Committee on Commerce will be read.

Mr. MORRILL. If the Senate will indulge me, I will make a general statement in regard to this bill, as perhaps I ought to do before the amendments are acted upon. This measure was prepared at the Treasury Department; and though the details are pretty extensive, the changes in the law are not very radical, and perhaps they will all be comprehended in a general statement that the provisions are intended to alter the several statutes bearing upon the question of smuggling, from 1791 down to the present time. Most of those statutes are not embodied in this act, and it does not profess to be a revision of that system, but is amendatory of the law touching the general subject of the acts to prevent smuggling, and there are sundry new provisions. These new provisions apply chiefly to the northern, northeastern, and northwestern frontiers, and are suggested by the relations which have sprung up in a few years past between the British Provinces on this continent and that region of our country.

The bill does not seek to change particularly

in any way the officers of the customs. I am not aware that it adds new officers or that it in any way directly changes the compensation. Mr. JOHNSON. Does it not abolish some? Mr. MORRILL. I think not.

Mr. JOHNSON. I so understand its reading. Mr. MORRILL. I believe there is no authority to abolish any officers except in a contingency. The main feature of the bill is to amend the statutes to prevent smuggling, according to the experience of the Treasury Department, to render them more efficient, and to add such additional sections as have been suggested by the exigencies of the times. These are the chief features of the bill, and I believe all the details will be found to fall under this general statement. The several sections and amendments thereto, having reference to the old statutes, statutes which are not new, very nearly explain themselves, so that I do not feel called upon to make any extended explanation of the sections in detail. I shall be glad to explain any section to which my attention may be called.

The PRESIDENT pro tempore. The Secretary will read the amendments reported by the Committee on Commerce in their order.

The Secretary read the first amendment, which was in section two, line five, to strike out "an officer" and insert "a collector, naval officer, or surveyor."

The amendment was agreed to.

The next amendment was in section two, line nine, to strike out the word "other" before "envelope.'

The amendment was agreed to.

The next amendment was in section two,

line eighteen, to strike out the word "implicated and insert the word "engaged."

The amendment was agreed to.

The next amendment was in section two, line nineteen, after the word "violation," to strike out the remainder of the section, in the following words:

And the Secretary of the Treasury shall have power, from time to time, to appoint such agents of the Treasury Department as, in his opinion, the exigencies of the revenue service may require, who shall be entitled to such reasonable compensation as he shall prescribe; and the twenty-seventh section of the act entitled "An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same," approved February 18, 1793, and the sixty-eighth and seventieth sections of the act entitled "An act to regulate the collection of duties on imports and tonnage," apaproved March 2, 1799, are hereby repealed.

The amendment was agreed to.

The next amendment was in section three, line ten, to strike out the word "other" before the word "envelope."

The amendment was agreed to.

The next amendment was in section three, line twenty-five, after the word "concealment," to insert the words "and all the equipage, trappings, and other appurtenances of such beast, team, or vehicle;" so that the clause will read:

And every such vehicle and beast, or either, together with teams or other motive power used in conveying, drawing, or propelling such vehicle, goods, wares, or merchandise, and all other appurtenances, including trunks, envelopes, covers, and all means of concealment, and all the equipage, trappings, and other appurtenances of such beast, team, or vehicle shall be subject to seizure and forfeiture.

The amendment was agreed to.

The next amendment was in section three, line twenty-seven, after the word "forfeiture,' to strike out the following words:

In like manner as is now by law, or shall be by this act, provided in regard to such goods, wares, or merchandise.

The amendment was agreed to.

The next amendment was in section four, line eight, after the word "law," to insert "such goods, wares, and merchandise shall be forfeited, and;" so that the section will read:

That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any goods, wares, or merchandise contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such goods, wares, or merchandise after their importation, knowing the same to have been imported contrary to law, such goods, wares, and merchandise shall be forfeited, and he or she shall,

on conviction thereof before any court of competent jurisdiction, be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both, at the discretion of such court.

The amendment was agreed to.

The next amendment was in section four, line thirteen, after the word "court," to strike out the following words:

And the guilty knowledge of the defendant, when convicted of the fact, shall in all cases be presumed unless he or she prove the contrary.

And to insert in lieu thereof:

And the onus probandi shall lie upon the defendant where probable cause is shown for such prosecution, to be judged of by the court before whom the prosecution is had.

Mr. JOHNSON. It seems to me that this is a departure from all the rules which experience has proved to be just and righteous. The object of the section is to prevent the illegal importation of certain articles of merchandise mentioned in it. I think the Senate had better look at it, for the amendment changes the section very materially. The section provides: That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any goods, wares, or merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportion, concealment, or sale of such goods, wares, or merchandise, after their importation, knowing the same to have been imported contrary to law, such goods, wares, and merchandise shall be forfeited.

As the bill originally stood, in the event of a prosecution, it provided that "the guilty knowledge of the defendant when convicted of the fact that is to say, when convicted of the fact of receiving, buying, or selling goods that had been improperly imported-"shall in all cases be presumed, unless he or she prove the contrary." That is contrary to all ideas of law.

Mr. JOHNSON. I know that is stricken out. The committee have stricken that out because, in the judgment of the committee, it is liable to objection; but they substitute for it what, according to my view, makes it almost as obnoxious as the passage they propose to strike out. They propose to substitute for it the following:

The onus probandi shall lie upon the defendant where probable cause is shown for such prosecution, to be judged of by the court before whom the prosecution is had.

Now, what is "probable cause " for a prosecution? What must a judge say is probable cause? That the goods have been imported contrary to law by somebody, and secondly, that the man prosecuted has received or bought or sold them. The fact of the illegal importation connected with the fact of the reception or the buying or the selling the judge may consider as sufficient probable cause to believe that the man is guilty, and cast upon him the burden of proving his innocence. I know of no case in which a rule of evidence so harsh as that has been adopted. It is a very good thing to prevent smuggling in order to secure as much revenue as we can; but it is paying very dearly if we accomplish that object by breaking down the landmarks which have heretofore been supposed by all the jurists of the country necessary to protect the individual citizen against an improper prosecution.

Now, it seems to me, it would be better to leave the case to stand upon the rules of evidence applicable to all offenses. Why is it necessary to say in this case, more than in any other case, that the defendant shall have thrown upon him the burden of proving his innocence? In all cases, if there be proof before the jury reasonably tending to the conviction of the offender, because reasonably establishing his guilt of the offense, he is called upon to defend himself. You do not want any additional statute in order to cast upon the offender who may be prosecuted the burden, in a case of that description, of proving his innocence; and the object, therefore, of this provision is to place him in a much worse situation than he is placed in now. Whenever the court, not the jury, shall think that the man is guilty upon the evidence which the prosecution has produced,

then a verdict is to be pronounced against him unless he proves his innocence. The judge, therefore, will be bound to tell the jury, "I think it is perfectly immaterial what you think-that the man is guilty upon the evidence already adduced, and you must find him guilty"-that is the necessary result, provided the law is carried out-"you must find him guilty, unless he, by evidence, assures you that he is not guilty. It seems to me, and I submit it to the honorable member from Maine, that that is going infinitely further than in any country that I know of it has ever been supposed necessary to go where the rights of the individual citizen are regarded at all. might all be placed in that situation. Mr. MORRILL. Oh, no; it only applies to smugglers.

We

Mr. JOHNSON. You might buy goods from them without knowing it. There are a few smugglers, perhaps, on the coast of Maine; I think it very likely that a great deal of the smuggling has been in that neighborhood. My goods that had been improperly smuggled in friend might be in Castine and might buy Castine. Suppose he should be prosecuted. The proof against him would be that the goods had been smuggled in and that he had bought them. That is a very good ground for prosecuting; and the only thing to be proved is, that he did know (in the absence of this legisadopt this amendment it is not necessary to lation) that they were smuggled; but if you prove that. They will prove the fact of the chase, and then call upon him to prove that illegal importation and the fact of the purhe did not know that they were illegally imported; otherwise he would be subjected to

the forfeiture. I do not see the occasion for it. I repeat, that in all cases, no matter what the character of the offense is, if the prosecu tion produces evidence which, in the judgment of reasonable men, under the direction of the court, tends to criminate the offender, if the jury do their duty, unless it can be explained away, they convict him; but this goes a great way beyond that. It assumes guilt from the mere fact that the party has bought or sold the goods illegally imported, and casts upon him the burden of proving his innocence.

Mr. SUMNER. It seems to me that the Senator from Maryland exaggerates the character of this proposition. No one knows better than that very experienced lawyer, that questions of what are called the weight of evidence or the onus probandi are ordinary questions of law, that is, there is a certain rule of law which determines that under certain circumstances the onus probandi is on the one party or the other. I take it that that is only what is called common learning; you find it in all the books: that the court must determine in advance where the onus probandi is. Now, if I understand it, this statute undertakes to determine in advance, in certain cases, where the onus probandi shall be. It lays down a rule in that respect. I admit that the rule may seem to be somewhat stringent. I admit, also, that it may be a departure from the common practice. But the question in my mind is, whether when we are dealing with cases like those of smuggling, we are not justified in making the rule more stringent and in departing from what may be the common practice. I therefore bring the question right to that point, and I ask the experienced Senator from Maryland whether in dealing with smuggling, from all our expe rience, from our knowledge of such cases, from the known habit of smugglers to evade all existing laws and regulations, we are not justi fied in bringing, if possible, an increased stringency of rule to bear upon them. I must say I think we are. It seems to me that is what this statute precisely does. It makes the rule more stringent against smugglers. The question is whether in making it more stringent against smuggling there is a departure from principle. I have already suggested that it is a most common practice to determine in what cases the onus probandi shall be one way or the other.

Mr. JOHNSON. From the prize law and the admiralty law.

Mr. SUMNER. Is not the admiralty law derived from the Roman jurisprudence? Mr. JOHNSON. Certainly.

he fails to explain, the court would say to the jury in such a case as that the burden of proof is on him, he must explain to your satisfaction, and failing to do it, the implication is one of guilt.

Then we come to the next question here: under what circumstances shall the onus probandi be upon the defendant? It is where probable cause is shown for such prosecution. presume that I do not err when I say that it is not a phrase of the common law. Probable Now here this section sets out certain facts: cause is not strictly a phrase of the common "any person who shall fraudulently or knowlaw. It is a phrase of the ancient Romaningly import" &c., going on to state the facts jurisprudence, and derived from the ancient under which certain things may be done, Roman jurisprudence. "knowing the same to have been imported contrary to law," &c., shall be subject to a penalty. The law provides that he may do that thing properly; he may do it legally and properly; and if he is charged with doing it wrongfully, and the facts appear, the facts are presented to the court, so that in the judgment of the court the burden of proof ought to be on him, then precisely in this case, as in the case where a man is charged with larceny, the court may say that the burden of proof is on him and they may instruct the jury against him. The burden of proof lies there under the authority of this statute, unless he vindicates himself. The only difference in the world is that we apply it here to a transaction which of itself is legal under the statute except for the guilty intent; and when the facts, in the judgment of the court, authorize an inference of his guilt, then he is to stand precisely on the general principle in criminal proceedings.

Mr. SUMNER. It is a phrase of the ancient Roman jurisprudence, derived from that, entering into the jurisprudence of all continental Europe, and all that portion of our own jurisprudence which is dependent upon the ancient Roman jurisprudence, the admiralty law, as the Senator from Maryland suggests, and also in England the law administered in consistorial courts. Now, in the Roman law, to go back to that, we find that the term probable cause plays an immense part. There is not a term in Roman jurisprudence, I presume, more important than that. Where a party could show "probable cause" for anything that he did it was a justification. I presume one could not err under the law of nations if he said that a public ship overhauling a merchantman_on the ocean, having probable cause to suspect that the ship was not what it purported to be; then the very fact of probable cause under such circumstances would be a sufficient defense; so important has the rule of probable cause, in the original Roman jurisprudence, and in those different countries who derived their jurisprudence from ancient Rome, been regarded.

Now, as I understand it, this phrase is imported into our statutes; it is not unknown in them before. Of course it occurs constantly in our revenue statutes, but there again, I take it, it is derived from this same original source. Now, it is proposed to declare that where probable cause is shown for a prosecution, the burden of proof shall be changed. As I have said, by that jurisprudence from which the phrase is derived, where probable cause is shown, it is a defense for any authorities in any seizure they make. They do not err. If the seizure be a ship, or if it be a man, or if it be any article of property, there is no mistake if the Government shows probable cause; and so, on the other hand, if there is probable cause to believe a man to be guilty, the burden of evidence under that jurisprudence absolutely changes and he has got to bring forward his evidence in order to overthrow that probable cause.

And now, to give a practical application to all this, it seems to me that in this clause there is simply an attempt, and I must say it seems to me a proper attempt, to give an increased stringency to the law for the represssion of smuggling, by making the showing of probable cause the occasion for a change of the onus probandi. I do not think there will be any mistake if we shall adopt it.

Mr. MORRILL. The Senator from Massachusetts has said, perhaps, in defense of this proposition all that need be said, except that desire to call the attention of the Senate to the fact that this is not a new provision, and then it seems to me that on the question of the burden of proof it is not that departure which the Senator from Maryland seems to think. It simply puts the burden of proof on the party only when the court shall say under the facts adduced that the burden of proof ought to lie on him. That is all it says. How does that differ in principle from the case of larceny? Where the goods are found in the possession of the party charged, the burden of proof is on him to explain. Suppose he does not explain. The court would tell the jury undoubtedly in such a case that he having been in possession of the goods, it is his duty to explain the charge of having come wrongfully by them; they are lost; they are found on him; now if

But this statute is not new; it has existed since 1799 substantially. I will read the provisions of the act from which I suppose this provision was taken. It is the act of 1799, chapter twenty-two, seventy-first section. That section concludes as follows:

"But the onus probandi shall lie on the claimant only where probable cause is shown for such prosecution, to be adjudged of by the court before whom the prosecution is held."

Mr. JOHNSON. That applies to property. Mr. MORRILL. There is no difference between that provision and this, except that in the statute of 1799 it applies to property; property was proceeded against there, and now this is a proceeding against the person. The principle is precisely the same. It seems to me that in principle it is not so objectionable as is supposed by the Senator from Maryland, and then in practice I am sure that any other rule would be found to be extremely mischiev

ous.

Mr. HOWE. I was not able to agree with the committee upon this amendment, and since listening to the remarks of the Senator from Maryland I am no nearer agreeing with them than I was before. I think if the impropriety of this proposed amendment could be demonstrated, the Senator from Maryland has demonstrated it. There are two ways in which this amendment may be regarded. If you look at the literal import of the words proposed to be inserted here, it seems to me it provides what nobody in the world would agree to. I am entirely agreed that the words proposed to be struck out should be struck out; so far I accede to the amendment; but as to inserting the words proposed to be inserted, I am utterly opposed to it.

The fact to be tried is a single one. It is not the selling of imported goods contrary to law, or the buying of goods which have been imported contrary to law. These are not crimes, not made so, not regarded so by the section. The offense here provided for is the selling or buying imported goods with a knowledge that they were imported in violation of the law. It is doing these things, with knowledge of the illegal character of the act. That is what the section is driving at. That is what it is proposed to punish. The cause upon which the defendant is arraigned is, for instance, the purchasing of goods, or the concealing of goods, or the buying of goods, knowing them to have been imported contrary to the law. This amendment proposes to say that the burden of proof shall lie on the defendant in case the judge says there is probable cause for the prosecution. What burden of proof?

Mr. BUCKALEW. It does not tell what.

Mr. HOWE. If you look at the words it would be the burden of proving the complaint. If the judge should say that the district attorney had probable cause for commencing the prosecution, when he gets so far that he can say that, then he must say "now the burden of proof is upon the defendant to establish the complaint to maintain the indictment." I think that is the literal meaning of the amendment; but it probably is not the meaning which the committee intended to give it. But, in the most favorable view you can take of it, it is dividing a single issue into two propositions and submitting one of them to the court and reserving the other to the jury. The court is to say, when so much of the case has been proved as that, if not explained or not controverted by the defendant, the jury must find a verdict of guilty. That much of the issue is left to the court, and the rest of it is reserved for the jury. The court says when the prima facie case is made out. The jury is left to say when the prima facie case is rebutted.

The fact of possession is a circumstance always proper to be submitted to the tribunal to establish the guilt, whether of importing or buying with knowledge that the goods were imported contrary to law; it is a circumstance going to show guilt; it is proper to be submitted to the jury; but it is proper for the jury to say what weight should be given to that circumstance as to every other circumstance. If that is the only circumstance which is proved in the case, the court cannot help but say that there was probable cause for a prosecution; but when the court says that, rings his bell, and says "here is probable cause for the prosecution," then he says in effect to the jury "now you must from this time forward in the trial of the cause hold this man guilty until he, taking the burden of proof upon himself, satisfies you by his own evidence, by his own efforts, by what he shall marshal before you in the nature of proof, that he did not know anything about it; until he shows this negative you must assume the affirmative," the affirmative being that he did know. That rests upon the allegation of the indictment.

Any circumstance, therefore, which shall induce the court to say that the district attorney was not to blame for commencing the prosecution, that he had probable cause for commencing the prosecution, any circumstance that enables the court to say that the district attor ney is not guilty, calls upon the defendant in fact to prove that he is not guilty. I think this is a very great advance upon any rule of evidence that I ever heard of in the trial of criminal causes. The Senator from Massachusetts says we may be justified in adopting more stringent rules in these cases. I think smuggling is a very bad thing and ought to be put down; but I do not know that smuggling is a greater crime than burglary, or than murder, or than treason. This is a rule of evidence, Í take it, we should not tolerate in the trial of either of those crimes, and I do not know why we should tolerate it in trying the crime of smuggling.

Mr. EDMUNDS. Mr. President, there is very great force indeed in the observations which have been submitted by the honorable Senator from Maryland in opposition to this amendment of the committee as it stands now, and inasmuch as I was not able to be present in the committee when this bill was considered, I venture to offer an amendment to the amendment reported by the committee, which I think will relieve it of the objections made by the Senator from Maryland, and will put it precisely upon the footing of the act of the 2d of March, 1799, which is in force to-day on this subject, and which has been found in the courts of the United States to be absolutely indispensable in cases of the seizure of smuggled goods. The amendment which I propose is to insert after the word "probandi" the words "'in cases of seizure," and in the same line to strike out the word "defendant" and insert the word "claimant," so that the amendment,

if adopted, will cause the section to read "and the onus probandi in cases of seizure.shall lie upon the claimant where probable cause is shown for such prosecution," &c.

The act of 1799, which may be called the constitutional basis of all our revenue and importation laws, provides, in the seventy-first section, the following rule of evidence in causes of this nature:

"In actions, suits, or informations to be brought where any seizure may be made pursuant to this act, if the property be claimed by any person. in every such case the onus probandi shall lie upon such claimant."

And in a succeeding part of the section:

"But the onus probandi shall lie on the claimant only where probable cause is shown for such prosecution to be adjudged of by the court before whom the prosecution is had."

It is well known by everybody who has had any experience in the prosecution or defense of these seizure causes that the most which the Government, in ninety-nine cases in a hundred, can do is to prove the unlawful importation presumptively; that is, to prove the fact that the particular goods in question have been introduced into the United States without the payment of duty; and then, pursuant to the act of 1799, it is the duty of the court to call upon the defendant to show a reasonable ground of excuse or exculpation against the prima facie presumption which the illegal importation without the payment of duty ought justly

to raise.

may

"And in actions, suits, or informations to be brought, where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall lie upon such claimant."

What is that? The officer seizes goods and he is sued in an action of replevin or any possessory action, or he is sued in an action of trover; and then the law provides, as it has a clear right to provide-such was the law before-that in such a case as that, the claimant being plaintiff is to make out his own case. He is to prove that the goods were his, and he is to prove that they were not improperly imported. The officer, being authorized expressly by the terms of the act to rely upon the act and upon special matter in his defense, is in possession of the goods, and he is sued by the alleged owner to recover the goods or in damages;

and in such case as that the statute declares that the party sueing, the alleged claimant, shall make out his case. There is no doubt about that, and the latter part of the section to which my friend from Maine adverted is intended merely as an explanation of that part which I have just read. It says this:

"But the onus probandi shall lie on the claimant only where probable cause is shown for such prosecution."

That is for the benefit of the claimant. If the claimant sues and the defendant does not show probable cause, he is not compelled to prove anything; but if the defendant does show that there was probable cause for the seizure, then the onus probandi is cast upon the claimant. But that is not this case. Here is a prosecution against a person for a penalty. He may be confined and imprisoned under the provisions of this act. Now, what says the statute? Prove all that the Government need prove; prove the importation; prove the buying or the selling; prove the possession by the defendant who is prosecuted of the goods proved to have been imported; and then he is guilty-not a matter to be left to the jury, but so far the whole matter is with the court. the court is satisfied that the case as it stands upon the evidence offered on the part of the prosecution presents a probable cause of guilt, then it is made the duty of the court to tell the jury "the case now stands in that situation that there must be a verdict of guilty unless the defendant satisfies you of his innocence." I say that that is contrary to anything to be found in the books, as far as my recollection goes.

If

The honorable member from Massachusetts said very properly that the term "probable cause" is not so familiar to common-law lawyers as to those familiar with the Roman law. He seemed to suppose that that phrase was not known to the common law. In that I think he is mistaken. Those words are in our statutes; they are familiar in cases of prize and in all cases of admiralty.

Mr. SUMNER. Under the Roman law. Mr. JOHNSON. If a party seizes a vessel during war, or seizes her under the revenue acts, and he is sued by the alleged owner, who proves to be the real owner, he escapes personal responsibility by proving to the satisfaction of the judge that he had probable cause for the seizure; and the certificate of that probable cause is a defense in any action which may be brought forward by the owner of the goods to recover damages sustained by him in consequence of the seizure. That is for the protection of the officers of the Government, and is a wise provision. They would be very unwilling to capture vessels as prizes of war, or to seize them for an alleged violation of the revenue acts if they were to be responsible on the contingency that it should turn that the vessel was not prize of war or if there was no ground for the seizure. But that is not this case, nor anything like it. Under the desire to prevent smuggling-an object that we all have at heart-it is proposed by this bill, as I think, to change all the rules of evidence. The honorable member says that the judge is in the habit frequently of stating in the trial of cases before him upon whom is the burden of proof cast. That is true; but does he say that to the jury in a criminal case? Has he any right in a criminal case to tell the jury, "In my opinion the man is guilty?" In a civil case, if the judge thinks, upon the evidence, that the case as it stands in point of law casts upon the defendant the burden of proving his defense, or that it stands in such a situation that it casts on the plaintiff the burden, changes the onus, he tells the jury so; but that is a question of law which may be carried up to the courts above, and his mistake corrected if he happens to make a mistake. This, however, cannot be carried up; there is no review of this; the judgment of the judge below is conclusive in the sense that it cannot be reviewed, and it is conclusive upon the action of the jury. If I understand

this section, it is put there for the very purpose of being conclusive. It is to tell the jury virtually, "The man is guilty unless he satisfies you that he is innocent.'

Mr. EDMUNDS. With all respect, sir, I cannot help thinking that my friend from Maryland is the person who misapprehends the scope of this clause of the seventy-first section of the act of 1799 rather than myself. The language which operates upon this subject is "actions, suits, or informations." The term "informa tions," as used in this act against property where any seizure is made pursuant to the act, is a technical term perfectly well known to the law and to lawyers. It is what is in the admiralty practice, in the cases of seizure in rem, called a libel of information; but in the more condensed language of the statute it is simply termed an information. When goods are seized by a customs officer for a breach of the revenue laws an information is filed against them; and if any party fails to come forward and claim the goods they are condemned without any hearing at all upon the mere seizure. If any person comes forward, according to the rules of the court, and makes oath that he is the owner of the goods, he is then entitled to enter his claim; and the term "claimant" is a technical term perfectly well understood by everybody who practices in those courts as indicating, not the plaintiff in an action at common law, not the defendant in an action of trover or trespass, but the party in a court of admiralty who, in a proceeding in rem, comes upon the record as making a formal claim to the property.

My conclusion, therefore, is that these provisions of the act of 1799 respecting the onus probandi in cases of seizure being upon the claimant, are provisions which by the very letter as well as the spirit of the act apply to pros ecutions against the property itself where a claimant, technically and legally known as such, appears in court and claims the property. In those cases, if I correctly understand the act of 1799, probable cause having been made out on the part of the prosecution, the onus probandi is then turned over to the claimant who asks that the property may be delivered to him, to explain the circumstances under which he introduced it.

Now, what is "probable cause?" It is very difficult to define the distinction between the meaning of the term "probable cause" and the meaning of the term "prima facie evidence." It would puzzle anybody except a Philadelphia lawyer to make any sensible and satisfactory distinction between these two terms. Then in a case of property-I leave aside, for a moment, entirely that part of it which relates to condemnation and fine as to the person-is it too hard to say to a claimant who comes into court and asks that property may be delivered up to him, prima facie evidence having been brought forward on the part of the Government that the property is justly subject to forfeiture, "You shall not be entitled to receive it out of court again until you bring forward some proof to meet this prima facie or probable evidence which has been adduced against you?" In my judgment it certainly is not.

Then the question is whether this bill which we have under consideration goes beyond the act of 1799; and I may say, indeed, before I come to that, that my experience on the border in the practice in the circuit and district courts of the United States, presided over by Judge Smalley and Judge Nelson, has been precisely in accordance with the construction which I put upon the act of 1799. When I began, not many years ago, in those courts, I was quite as restive with my common-law education about this notion of the onus probandi being upon the party whose goods were seized as anybody could be; I did not like it; my clients did not like it, for I generally appeared for the claimants, not being district attorney; but the invariable practice in that district (and I have no doubt in the southern district of New York, where very large numbers of these cases occur) has been, as a matter of course, without debate,

to apply the provisions which I have read from the act of 1799 to every cause of prosecution against property under the revenue acts; and probable cause being shown, to then call upon the defendant to overcome it if he could.

Now, to come to the act which we have in question; this fourth section provides for two descriptions of things: one is the forfeiture of merchandise which may be illegally imported, and the other is the punishment of the person who shall be guilty of the illegal and fraudulent importation. So far as the application of this rule of evidence to a case of distinct prosecution against a person by which he may be deprived of his liberty is concerned, I entirely agree to what has been said by the Senator from Maryland that it is going beyond what the law has been hitherto and is going beyond the just principles which ought to furnish security in cases where liberty is involved; but when you limit it, as my amendment proposes to limit it, to cases of seizure of goods provided for in that section, and to cases where a party voluntarily appears in court and claims the property, then it appears to me that it is not asking too much to require such a claimant, probable cause having been made out against the property, to introduce some proof in order to authorize the court to give it up to him. In most cases, in all cases of admiralty seizure, of maritime jurisdiction, that is not a question for a jury at all; it is only in cases of municipal seizure that a jury has anything to do with it; so that with the amendment which I have had the honor to submit it appears to me that we are only standing exactly upon the theory and practice under the act of 1799.

Mr. WILLIAMS. Mr. President, I feel a little interest in this bill as I live on the northwestern frontier where there is more or less of the business of smuggling, and I know that there is a necessity for stringent legislation upon that subject. I believe that this amendment which is proposed by the Committee on Commerce to this bill is not objectionable, and I am not very certain that the bill as it originally stood would be too strong in its application to cases of this description. To import goods into the United States is a lawful business, though goods may be imported contrary to law, and in that respect the business of importation stands upon a different footing, as it appears to me, from other kinds of business to which reference has been made during this discussion for illustration. Larceny is not a lawful business, burglary is not a lawful business, arson is not a lawful business; but the importation of goods is a lawful business, and therefore there is greater difficulty in detecting a violation of law in that business than under other circumstances that have been suggested by those who object to this amendment. This amendment, as I understand it, where probable cause appears for a prosecution, transfers the onus probandi to the defendant. I do not think that this provision contravenes the provisions of law applicable to criminal prosecutions in other cases as has been suggested. Now, where a man is prosecuted for larceny and has possession of the stolen goods within a reasonable time after the commission of the crime, that time is presumptive evidence of his guilt, and it becomes necessary for him to explain that possession and rebut the presumption which arises from that fact. Where goods have been imported contrary to law, and they are found soon after their importation in a man's possession, this amendment simply requires him to explain that possession and show how he came to have in his hands goods that had been imported contrary to law.

Mr. CLARK. Suppose the Senator should turn his attention to the case of a man who has counterfeit money in his possession, which is an offense where there is an intent to pass it, would it be quite just to impose the burden of proof on the man who happened to have the money? A man may buy an article which has been imported contrary to law, not knowing it, in the same way that he may have a counterfeit bill and not know it. The law does not

impose upon the man having the counterfeit bill the onus of the proof showing that he did not know that it was counterfeit. It is a case more analogous to this than the one put by the Senator, I think.

Mr. WILLIAMS. I think not, because the case which I put is the case where a man is found in the possession of goods to which he has no right by law, and in this case the man is found in the possession of goods to which he has no right by law, so that the cases, as it seems to me, are analogous cases.

Upon the northwestern frontier it is customary for persons to go on board vessels at Victoria and come around to Portland with trunks and packages, and to violate the revenue laws in that way; and when a prosecution is commenced against the master of the vessel, although the fact of the importation contrary to law is established as a general rule, the defense that he makes is that he was ignorant of the fact that the goods were brought upon his vessel or that they were brought into the port of Portland contrary to the law. Now, if the law be that the fact that he has imported those goods in violation of the law is probable cause of prosecution, and he understands it to be the law, then it will make him diligent, and when goods are brought on board his vessel he will see to it that they are goods that can be transported, or on which the duties are paid, and that they are not brought into the ports of the United States contrary to law.

In that respect I think this provision will be of advantage. It will make it necessary for masters and those who have the management of ships to be more diligent to prevent smuggling. Trunks of opium, for instance, are taken on ships at Victoria and brought to Portland. When the master of the vessel is prosecuted for smuggling, the fact that a trunk filled with opium has been brought from a British port to an American port contrary to law is undeniable, but the master undertakes to defend himself upon the ground that he was ignorant, that he did not know that there were such goods on board his vessel, and if he is inattentive to his duties he may successfully make that defense; but if, when the fact is established that he has imported these goods contrary to law, he is then compelled to show that he did not know that the goods were on board the ship, it seems to me that he will be more diligent and take more pains to see that the laws of the country are maintained in this respect.

It seems to me that to declare that when probable cause for the prosecution is established the onus probandi shall be on the defendant, is not a proposition that is objectionable as urged by gentlemen who oppose it, and that in cases of this description it is absolutely necessary. Possession of the goods by the man who transports them or by any person after they are transported is probable cause if the goods are found in his possession within a reasonable time. That constitutes probable cause; and what does the court say to the jury when a man is prosecuted for smuggling or prosecuted for assisting in smuggling and the fact appears to the court and jury that these goods after their arrival at the port were in the possession of the individual prosecuted? Now, the court say the possession of these goods at this time, within a short time after they arrive in the port, is probable cause." If a long time elapsed, their possession would not amount to probable cause, as in a case of larceny; but if the goods that are smuggled into the port are found soon after in the possession of an individual who is prosecuted for a violation of this law, the court would say to the jury, "Gentlemen, this fact that the goods were in the possession of this man is probable cause for the prosecution, and it is necessary that he should explain this possession and show that it is consistent with his innocence.' ""

That is all, it seems to me, that this provision amounts to, and it is not an unreasonable provision; and I think that, considering the difficulties in maintaining prosecutions for violations of this law and the various arts and

expedients that are resorted to by men engaged in this business, this is not a rule too stringent and it will be found to operate well in practice.

Mr. CONNESS. Mr. President, if the illustrations given by the honorable Senator from Oregon were to be taken as an exemplification of how this section was to be applied, I should hesitate very much before I should vote for the proposed amendment. The honorable Senator says that the captains of ships and the owners of ships must be made responsible when they bring goods into the country which are contraband goods, which are dutiable, but upon which the duties have not been paid; that they must be subject to punishment. I think he gives us an illustration that would, in the cases to which he calls our attention, prohibit all trade whatever. I submit to the Senator himself, in regard to the ships trading between Oregon and the British port of Victoria, in British Columbia, and between that port and the ports of California, that it is simply impossible for the captains of those vessels to know the contents of every trunk that comes on board. How can it be done? Must a captain demand that every trunk and every package shall be opened before it goes on his ship? I apprehend not; and yet if a trunk is found to contain opium when it arrives at Portland in Oregon, or San Francisco in California, in possession of a passenger without the knowledge of the captain, it being impossible for him to know, he having exercised all the vigilance possible

Mr. JOHNSON. In a passenger's private baggage?

Mr. CONNESS. In his private baggage I am speaking of. His ship is at stake; although his ship may not be forfeited by the law, he knows that he will be subject to continuous and expensive prosecutions and litigations with all the diligence that he can exercise; and incited by these consequences, he is yet to be held responsible. I think it would be the interest of every man to put his money into something else than into American ships under such circumstances.

Mr. WILLIAMS. The Senator will allow me to say that is not my position. I simply say that he ought to be responsible unless he can show that he was ignorant of the fact, and therefore innocent. When the master of a vessel imports goods into the United States contrary to law, the onus of proving his innocence ought to be upon the master, in my opinion.

Mr. CONNESS. Does the Senator not use a term not exactly the best there, when he speaks of the master of a vessel importing goods? The master of a vessel commands the ship. The cargo is taken on board. The cargo consists of goods imported by merchants in Portland or in San Francisco. They are the importers. They know the contents of the cargo. The captain cannot possibly know; he is not the importer in any sense as I understand it. He simply commands the ship and sees that his ship is safe from port to port. It is true that the law holds him not to be in complicity with the violation of the revenue laws, and that is right. But if he have no such complicity at all, why shall you construct a law that shall hold him for knowing the contents of every private package brought on board of his ship? If that were the effect of this amendment I could not vote for it; but I do not so understand the amendment. I may misunderstand it, but if that be its effect I think it ought not to be adopted. All that the laws of the United States can hold our ship-masters and ship-owners to is the honest exercise of all the vigilance that they can employ to prevent smuggling. When they have yielded that much, they should certainly not be held responsible further than that.

The PRESIDING OFFICER, (Mr. HARRIS in the chair.) The question is on the amendment offered by the Senator from Vermont [Mr. EDMUNDS] to the amendment of the committee to insert after the word "probandi" the words "in cases of seizure," and to strike out the