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tem efficient and uniform everywhere. It seems to me that the measure as it now stands, with the amendment, if Senators desire the amendment to be added, would accomplish a great deal; it is a very different thing from what was reported from the Committee on Commerce. Mr. MORRILL. I want to call the attention of my friend from Wisconsin [Mr. Howe] to a single remark that he let fall. That Senator is always critical; he means to be just, I have no doubt, but when he says that this resolution provides for the payment of all the expenses incurred by the States in their systems of quarantine, touching this subject-matter, he is very wide of the mark, I beg to say. The Government by this measure does not propose to pay the expenses of the States for anything they may do for the protection of the public health in the States. The Secretary of the Treasury would not be authorized to pay the first shilling of the expenses of the local authorities. He is simply authorized to aid the States, and as much money as is necessary to pay for what the Government does is to be appropriated for that purpose for the aid it renders, not what the States do. We pay for the aid which we authorize the General Government to give; we do not authorize the Secretary of the Treasury to pay the expenses of the sanitary and health regulations of the States by any means. I suggest, therefore, to my honorable friend that his criticism, while it is a little harsh, is a little unjust.
Mr. HOWE. If I have done injustice to this resolution, I feel condemned. The man that would deliberately do injustice to such a resolution as this, I think would be unjust to cholera itself, for I do not know of anything more obnoxious in itself than the resolution except cholera, the naked and pure article.
Mr. President, I do not know but that I ought to accept without qualification the criticism of my friend from Maine. He says that the resolution does not intend that the Government shall pay for anything that the States do, but only for what the Government does in aid of the States. I guess it is a pretty correct statement; but how far it circumscribes my idea of the extent of the expenditure is a question to be considered. Grant that the national Treasury will only pay for what the nation does, how will the work be divided? The city of New York and the city of Boston and each of the other cities threatened with the introduction of cholera, will say "We want quarantine regulations; we want an officer here that shall command a ship coming from an infected port, into quarantine; that is what we want." That the State will do, and there will be no payment for saying that; but the Secretary of the Treasury will say to the collector or the deputy collector, or some health officer that he designates for that duty, "Take your stand there at the gateways of that port, and order all these vessels into quarantine as they approach;" and for that the national Treasury pays; for this service
Senator from Wisconsin that that does not answer my question. He does not answer the statement that I made.
Then I did not understand
Mr. HOWE. the question.
Mr. CLARK. Then you should not have attempted to answer it.
I thought I did understand it. Mr. CLARK. I suggested that I had no objection to the General Government aiding the States, and the Senator from Michigan said that that could not be done, and I asked him why.
Mr. HOWE. I did not understand the question.
Mr. CLARK. I though you did not. Mr. HOWE. I plead guilty. I do not know that I was to blame for it altogether.
Mr. CHANDLER. I understood the Senator to say that where the States had no system, he did not object to the national Government enforcing a system.
Mr. HOWE. That is precisely the way understood him.
Mr. CHANDLER. That is what I understood and what my colleague says he did say; and that is what I answered.
Mr. CLARK. The Senator will bear in mind and remember exactly what I was saying and the line of remark I was making, that I had no objection-the Senator from Wisconsin will remember it, because it was an allusion to a remark that he had made about the national Government dancing attendance on the State governments-that I had no objection to the national Government aiding the State governments. The Senator from Michigan says it cannot be done.
Mr. CHANDLER. I said it could not be done where no system was adopted by the local authorities.
Mr. CLARK. Let us see, Mr. President, whether it cannot be done. These gentlemen contend that the national Government have plenary power. That is the basis on which their proposition goes. Now, take it for granted that there is no quarantine in the State of New Jersey, and the Government have plenary power to establish it, why cannot the Secretary of the Treasury do it under this resolution by his revenue-cutters and revenue agents?
Mr. CHANDLER. Because the resolution does not give him the authority to do so.
Mr. HOWARD. They are to be used in aid of the State quarantine.
Mr. CLARK. To be used in aid of the States, not of a particular State. Where the States have failed to do it, then the General Government may do it.
Mr. HOWARD. Take a case where there is an utter absence of all such regulations on the part of the State, where the State has employed no force and no agency whatever in the shape of quarantine regulations: what power does this resolution give to the United States authorities to interfere in that particular State in any way on the subject of quarantine?
Mr. CLARK. If the Senator from Michigan is disposed to construe the language so technically, it is the easiest thing in the world to amend the resolution in that particular, and say, where the State fails to do it then the General Government may do it.
Mr. CHANDLER. That was the committee's proposition.
Mr. CLARK. I am entirely willing that the resolution should be amended in that particular, if Senators desire it, if that is the carping objection they make to it.
Mr. CHANDLER. That is the only difference between the two resolutions.
Mr. CLARK. The Senator from Michigan says that that is the only difference between the two resolutions!
Mr. CHANDLER. The chief difference. Mr. CLARK. Pray, where did the Senator learn the English language or its force? The bill as reported from the Committee on Commerce overruled State legislation entirely, if the Secretaries chose to do so, to make the sys
Mr. GRIMES. The detention of the vessel? Mr. HOWE. For keeping the officer there, and whatever is necessary to put her into quarantine and detain her there. That is all the expense there is under any system, and that the national Treasury pays for; but for the mere head-work, for the mere application, for the simple decision of the port or city authorities adjacent to the port where they want these regulations established, there is no payment to be made and no expense incurred.
Gentlemen have inveighed a great deal against the danger growing out of the use of this word "uniform." What is the danger? What does it mean? It means nothing in the world more than that no matter to what port a vessel is destined, if she has cholera on board, she may be ordered into quarantine, or for the purpose of examination she may be stopped and searched. This is just as necessary in one port as another; and doctors say, and I believe, that it is of no sort of use in any port unless it be observed in all ports. It does not follow that there is to be a multitude of new officers em
ployed under this bill, or under the amendment reported by the committee which you have rejected. Very likely the collector or deputy collector can exercise the power, and there is one everywhere where a vessel is authorized to unload; and very likely this officer himself is equal to the emergency. I do not know what regulations this board of commissioners would adopt; I do not know what regulations the Secretary of the Treasury would adopt. I only say that I was not very much in favor of the Government's taking this work upon its hands at all; and therefore I was not very much in favor of the adoption of the amendment reported by the committee. I voted for it mainly because I found so many here denying that the Government had any authority in the matter. I voted rather to assert the authority than because I wanted to have it exercised; but I am utterly opposed to our intervening at all under the direction of the several municipalities.
Mr. HENDERSON. If the Senator from Wisconsin will turn to the law that was adopted in 1799, and which has been referred to, I think he will see that at least Congress at that time supposed that it was altogether proper to pass a law similar to the one we now have under consideration, not for the purpose of making it the duty of the officers of the United States to carry out State laws and to bring about an expense upon the Treasury by so doing, but for the purpose of making it obligatory upon the Federal officers in the discharge of duties under the United States to obey those State laws. If I understand this resolution, it means nothing more and nothing less than that.
The Senator assumes that in all probability at New York they may have quarantine regulations, but that at the city of Brooklyn they may have none. That is presuming that the people of New York are willing that the cholera may enter into the State through Brooklyn, but not through the city of New York. Is such a presumption at all reasonable? We must rely something upon the people of the respective States.
The Senator complains that we leave it to the different cities to adopt any sort of quaran tine regulations they choose, and we in this resolution make it the duty of the Federal officers to carry it out, and thereby entail an expense upon the Government. Let me ask if it is possible that any expense can come to the Government under this resolution. It authorizes the Secretary of the Treasury to employ the revenue officers in the execution of such orders as he may make upon the subject. I did not move to strike out that clause which appropri ates whatever sum may be necessary, though I can see no use in it; but I submit to the Senator from Wisconsin whether it is possible that one dollar of expense can be entailed in the execution of this resolution. I cannot conceive that a dollar of expense can come upon the United States in consequence of it.
Mr. HOWE. Then strike out that clause, and close the Treasury.
Mr. HENDERSON. I have no objection; I did not put it there. In the amendment which I offered I made it obligatory upon the Secretary of the Treasury, in carrying out these regulations, to employ officers already upon duty, and who are receiving their salaries. Is it possible that it will be necessary to pay them additional salaries? I think not. The Senator is altogether mistaken when he supposes that under this joint resolution any additional expenditure can be made. I cannot conceive of anything of the sort.
The Senator asks, why, then, is it necessary to make it obligatory upon these officers to observe the quarantine laws of the States? I agree with him as to the supremacy of the laws of Congress, so that if under an act of Congress a ship is authorized when it comes to the port of New York to discharge its freight immediately it can do it independent of the quarantine laws of the State. What is the meaning of this resolution? It is to make the officers of the Federal Government obey the State
quarantine laws-to put it in the power of the Secretary of the Treasury to make it obligatory upon them to obey those laws and not to disregard them. The Senator from Wisconsin will recollect that there are laws, the revenue laws, which permit vessels, when they arrive at a port of the United States, within a certain time to land and discharge that freight in warehouses of the United States. Suppose that the law of the State of New York prohibits a vessel from landing there on account of the fear of contagious diseases; there is a conflict of jurisdiction at once; there is a conflict between the Federal law and the State law. Now, suppose that the collector of customs at New York city, obeying the Federal law, should order a vessel up into the port of New York, and order it to discharge its freight and passengers there against the quarantine laws of the State of New York, or of the city of New York, passed under State authority, the Senator will see at once that a conflict of jurisdiction would arise. The law of 1799 provides for a case of that sort. The idea there was to give the power to the Secretary of the Treasury to make the revenue collectors and all the officers in the discharge of Federal duties in the respective ports obey the quarantine laws of the States, and that is the only meaning of this resolution now. If gentlemen insist that there are some cities in the United States that have adopted no quarantine regulations, and that it is necessary that they should be adopted, an amendment may be added, but I do not think it is necessary. The people of Brooklyn, if cholera is to visit the United States, will guard and protect themselves against its introduction there just as efficiently as the people of New York. So will the people of New Orleans, the people of Richmond, the people of Portland, the people of New London, and the people of every other city. The first section of the act of 1799 is in these words:
by the first clause; there the Secretary of the Treasury is clothed with the authority to make orders and regulations.
"That the quarantines and other restraints, which shall be required and established by the health laws of any State, or pursuant thereto, respecting any vessels arriving in, or bound to, any port or district thereof, whether from a foreign port or place, or from another district of the United States, shall be duly observed by the collectors and all other officers of the revenue of the United States, appointed and employed for the several collection districts of such State respectively, and by the masters and crews of the several revenue-cutters, and by the military officers who shall command in any fort or station upon the sea-coast."
So the Senator will see that this resolution now is in perfect accordance with the law of 1799. The second section of that act provides: "That when by the health laws of any State, or by the regulations which shall be made pursuant thereto, any vessel arriving within a collection district of such State, shall be prohibited from coming to the port of entry or delivery by law established for such district, and it shall be required or permitted by such health laws, that the cargo of such vessel shall or may be unladen at some other place within or near to such district, the collector authorized therein, after due report to him of the whole of such cargo, may grant his especial warrant or permit for the unlading and discharge thereof under the care of the surveyor, or of one or more inspectors, at some other place where such health laws will permit."
So the law now, instead of inflicting any expense upon the Government, only gives power to the Secretary of the Treasury to order the officers of the United States to conform to and assist in carrying out the laws that may be adopted in the respective States.
Mr. HOWE. The Senator either misapprehends the state of the resolution, or else I misapprehend the force of it. This power to direct the revenue officers is an additional power, a power in addition to the power given
Let me ask the Senator if it is at all likely the Secretary of the Treasury will employ other officers than the officers of the Treasury already in the different ports of the United States in the execution of these quarantine laws? If so I am willing to limit his power; but I cannot imagine that the Secretary of the Treasury, already having command of the revenue officers in the different ports, will put the United States to any additional expense, but that he will employ the officers of the revenue-cutters in that way.
Mr. HOWE. My friend from Missouri and myself can end this controversy very suddenly, I think. Just make the resolution that it only authorizes him to employ the revenue officers in the execution of the local quarantine regulations, and shut up the Treasury, and I do not care how it is.
Mr. HENDERSON. Strike out the latter part of the resolution; that shuts up the Treas
Mr. HOWE. That shuts up the Treasury, but it does not cut out the first part.
The PRESIDENT pro tempore. The question is on ordering the amendments to be engrossed, and the joint resolution to be read the third time.
Mr. JOHNSON called for the yeas and nays, and they were ordered; and being taken, resulted-yeas 27, nays 12; as follows:
YEAS-Messrs. Buckalew, Clark, Davis, Dixon, Doolittle, Edmunds, Fessenden, Foster, Grimes, Guthrie, Harris, Henderson, Hendricks, Johnson, Kirkwood, Lane of Kansas, Morgan, Morrill, Norton, Poland, Pomeroy, Sprague, Stewart, Sumner, Van Winkle, Willey, and Wilson-27.
NAYS-Messrs. Chandler, Conness, Howard, Howe, McDougall, Nye, Ramsey, Riddie, Trumbull, Wade. Williams, and Yates-12.
Mr. HENDERSON. I desire to amend the title of this joint resolution, so as to read, "A resolution respecting quarantine and health laws." I think that would be a better title, and I move that amendment.
The title was so amended.
MESSAGE FROM THE HOUSE.
A message from the House of Representatives, by Mr. LLOYD, its Chief Clerk, announced that the House of Representatives had agreed to the amendments of the Senate to the bill (H. R. No. 280) making appropriations for the service of the Post Office Department during the fiscal year ending the 30th of June, 1867, and for other purposes.
The message further announced that the House of Representatives had passed without amendment the joint resolution (S. R. No. 88)|| authorizing the Secretary of War to grant the use of certain lumber for the fair for the Soldiers' and Sailors' Orphan Home.
The message also announced that the House of Representatives had passed a joint resolution (H. R. No. 184) relative to appointments in the Military Academy of the United States; in which it requested the concurrence of the Senate.
ABSENT-Messrs. Anthony, Brown. Cowan, Cragin, Creswell, Lane of Indiana, Nesmith, Saulsbury, Sherman, and Wright-10.
The joint resolution was read the third time, Michigan. and passed.
ADMISSION OF COLORADO-VETO.
Mr. EDWARD COOPER, Secretary to the President of the United States, appeared below the bar and delivered the following message:
Mr. President, I am directed by the President of the United States to return to the Senate in which it originated, a bill (S. No. 74) entitled "An act for the admission of the State
of Colorado into the Union," with his objections in writing.
APPOINTMENTS AND REMOVALS.
Mr. HENDERSON. I desire to call up a bill that I introduced a few days ago-Senate bill No. 315-to regulate appointments to and removals from office. I desire merely to call it up, with a view of referring it to the Judiciary Committee. The committee, I understand, meets to-morrow morning and I desire that it shall be referred to them for action.
The PRESIDENT pro tempore. The Chair will entertain the motion to commit. The motion was agreed to.
PREVENTION OF SMUGGLING.
Mr. MORRILL. I call up the special order. The PRESIDENT pro tempore. That is now before the Senate, being Senate bill No. 222, to further prevent smuggling, and for other purposes.
Mr. HOWARD. I move to set aside all other orders and take up Senate bill No. 109.
Mr. FESSENDEN. I hope not. This is the special order which was laid over yesterday; and I want to take up some appropriation bills as soon as it is disposed of.
Mr. HOWARD. The bill to which I call attention has been up once.
Mr. MORRILL. This is the unfinished business of yesterday. We can soon finish it. The only question is on concurrence in some amendments.
The PRESIDENT pro tempore. The question is on the motion of the Senator from
Mr. MORRILL. The Senator is not aware, perhaps, that this bill comes up as a special order and is now before the Senate.
Mr. CHANDLER. It can be finished in five minutes.
Mr. HOWARD. Very well. I withdraw the motion.
The PRESIDENT pro tempore. (S. No. 222) further to prevent smuggling, and for other purposes, is before the Senate; and the question is on concurring in the amendments made as in Committee of the Whole, which were excepted out of the general scope of amendments that were concurred in. The first excepted amendment will be read.
The Secretary read the first excepted amendment which was in section four, line thirteen, to strike out the 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 in lieu thereof to insert the following:
Mr. JOHNSON. That seems singular. The PRESIDENT pro tempore. If the motion to strike out and insert shall be rejected, a motion to strike out will then be in order; but under the rules of the Senate a motion to strike out and insert is one motion and not divisible.
Mr. CONNESS. I hope the Senator from
Maine, who has charge of the bill on behalf of the committee, will change the form of his motion and move first to strike out so as to simplify the matter, in order that we may vote separately on the propositions.
Mr. JOHNSON. As I understand the ruling of the Chair, the amendment proposed is one that cannot be divided; but if it shall be voted down we can then move to strike out the clause as it stands in the bill. Before the vote is taken I beg leave to add another remark or two to those which I submitted yesterday to the Senate against this amendment.
The honorable member from Massachusetts [Mr. SUMNER] yesterday, said, in regard to the burden of proof, or the onus probandi, as it is classically termed-my friend from Maine does not like the classic language, [laughter]that it was a very common thing in court that the onus probandi or burden of proof is changed from one to the other of the litigants as the case may progress. That is all true; but how is it done in a civil suit? It is left by the court to the jury to say that if they believe that the fact was so and so, then it is for the other side to satisfy them that notwithstanding this fact the plaintiff is not entitled to recover, or whatever the effect may be. Now, what is the effect of this amendment? I am not bringing now the arts of the practicing lawyer, which my friend from Massachusetts seems to suppose I am always resorting to.
land reminds me that I do not bring to this discussion the large professional experience which we all know belongs to him. Sir, nobody can regret that more than I do, nor am I unwilling that the Senator should remind me of it. I bring to the question nothing but an honest judgment.
Mr. JOHNSON. I do not doubt that. Mr. SUMNER. I bring to the question nothing but an honest judgment, with some slight recollection of early professional study. That is all I pretend to do. But bringing such as I have to the discussion, the Senator from Maryland will pardon me if I suggest to him what it seems to me are two mistakes on his part on this occasion.
Mr. SUMNER. Oh, no.
Mr. JOHNSON. He does me great injustice in any such supposition. If I have any of the arts belonging to the practicing lawyer, I do not bring them into this forum knowingly; and let me say that if my friend from Massachusetts had been at the bar as long as I have been, I think, perhaps, some of his speeches would be, as far as the law is concerned, a little more sound than they are. [Laughter.]
The effect of this amendment is to take from the jury the finding of the fact. If this section passes as it is, instead of telling the jury that if they believe that the goods were imported contrary to law, and if they believe that the defendant, if he is prosecuted, as having bought goods, or being in possession of goods illegally imported, really bought the goods in fact, or was found in possession of the goods, then they must convict unless he shall be able to account for his purchase or possession; instead of leaving it to the jury to find the fact that the goods were imported illegally, and that if imported illegally they came into the possession of the defendant against whom the prosecution is instituted, it leaves it to the court to say, as I understand it, that the case as it stands upon the proof is one in which in point of law there must be a conviction unless the defendant can absolve himself from the supposed prima facie evidence of the facts offered on the part of the Government. It is, therefore, in my judgment to deprive a party charged in a criminal prosecution of the security which the common law gives and which the Constitution of the United States expressly gives, of having the offense with which he may be charged passed upon by a jury; and of the right he has to have all the facts passed upon by the jury, to have the evidence offered on the part of the Government as well as the evidence offered on the part of the traverser or accused heard by the jury. If this means anything it means to say that importation illegal in fact and possession in fact is to be considered as possession with a knowledge of the illegal importation, unless the party can clear himself of it by affirmative evidence; and the jury have nothing to do but to convict, taking away from the jury the right to find whether the fact charged existed or not, whether the importation was an illegal importation or not, or whether the defendant was a purchaser of the goods or found in possession of the goods thus illegally imported. Unless I am grossly mistaken, it very materially interferes with the security which the Constitution gives to every man charged with an offense, of having the matter investigated by a jury.
Mr. SUMNER. The Senator from Mary.
In the first place, he argues on this proposition as if we were to bring it to the test of existing law. Now, bringing it to the test of existing law, I am not going to argue that the proposition could be sustained; but the question is whether it is not in our power to declare a new rule applicable to this case to meet what I said yesterday was the stringency that seemed to be required, and there I differ with the learned Senator. It does seem to me that it is clearly within our province to lay down this rule, and if it is within our province I think that the exigency demands it; and therefore the Senator will pardon me if I put aside absolutely all his ingenious argument, which is founded on existing law, and which goes to show that according to existing law this cannot be done.
vides that before the party can be guilty he shall fraudulently or knowingly import or assist in the importation of goods against the law, that is, with a design not to pay custom duties. The second clause of it applies to those individuals who shall attempt to sell and to assist in the transportation through the country of goods that are thus fraudulently brought in. The Senate will see that it requires, first, a fraudulent knowledge of the improper importation; and secondly, even if he assists in receiving, buying, or selling the goods, it must be with a knowledge that they were imported contrary to law. Now, sup pose that a prosecution is lodged against an individual thus situated. He has either imported the goods into the country and failed to pay the duties, or he has purchased the goods after they are imported. What is necessary to be established in order to produce a conviction? Is it not a knowledge of the fact? Is it not necessary for the prosecution to show that the party thus affected must have shown of the violation of the law? Then it rests upon the United States to establish guilt, to show a guilty knowledge. There can be no question about that fact; and the original bill it seems provided that if the fact itself were shown, that is, if the party was found in the possession of goods that had not paid duty, or if the party had bought goods that had been thus imported, whether he knew the fact of the illegal impor tation or not, guilty knowledge should be presumed. "The guilty knowledge of the defendant, when convicted of the fact, shall in all cases be presumed unless he or she prove the contrary."
I put it all aside; but then I am not willing to stop there. I remind the learned Senatorand no one needs to be reminded of it lessthat there is a whole class of legal presumptions, presumptions of law in contradistinction to presumptions of fact, which when they occur are considered the grounds of conclusion in a Certain facts appear; to those the court apply not a conclusion merely of fact, but an absolute conclusion of law, and that we call a presumption of law. How often that occurs in criminal proceedings; I will not go into details, but the Senator will remember them, I dare say, by the dozen, much more freshly than I should. Suffice it to say they do occur; and now, as I understand it, here is simply one more presumption of law which it is proposed to add to other presumptions of law.
The other mistake which it seems to me my honorable friend fell into-I have mentioned one-was one which we all know in the excellence of his disposition and from long professional habit he is disposed to fall into-that is, to become the attorney general of criminals. He falls into that character easily. In short, my learned friend seems to have a warm side for criminals; and whenever any proposition is brought forward which promises to give a new restraint to crime, my learned friend finds some objection; he receives the criminal on his warm side; he embraces him and he resists the statute. Now, I think he is under that influence to-day. He resists this proposition because if adopted it will be a new restraint upon crime, it will help to prevent smuggling, and to that end certainly it will be a benefaction to the country.
Mr. HENDERSON. I certainly have no desire to enter into the discussion of the legal question that has grown up between the two Senators. I desire simply to regulate my own vote on this subject, and I should like to make an inquiry of the Senator having charge of the bill, in order to ascertain the extent of this provision and what is the meaning of it; for I really do not understand it. The first part of the section provides for the punishment of a person who 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."
The Senate will see that the first clause pro
I can understand that provision. That will produce uniformity in the administration of justice under this bill. When the fact is once established against a party that he is found in possession of goods fraudulently brought by somebody, then guilty knowledge is to be presumed against him. Where a party has struck another with a deadly weapon, he is presumed to have done it with the intention to kill, because of the fact that it is a deadly weapon; and when once that fact is shown, the presumption of law arises that the assault was with intent to kill and malice is presumed from the act itself, and it then devolves upon the defendant to show facts that will exculpate him; it devolves upon him then to remove the presumption which would naturally arise from the use of a deadly weapon. Now, the inten tion of the committee originally evidently was that if goods were imported and the duty not paid, the party who is in possession of the goods is to be presumed in a prosecution to have had guilty knowledge of the fact of illegal importation.
Mr. MORRILL. Not merely possession, but possession surrounded by such circumstances as in the opinion of the court to lead
to such an inference.
Mr. HENDERSON. There is the difficulty. If the Senator will provide some fact which being established the presumption of guilt will arise unless the defendant can exculpate himself, I will vote for it; but I cannot vote for the amendment as it now stands-"and the burden of proof shall lie upon the defendant where probable cause is shown for such prosecution."
Take a case. A man is prosecuted and it is shown that he commanded a vessel which brought goods into this country. Am I to understand, as would seem to be inferred in the argument of the Senator from Oregon [Mr. WILLIAMS] yesterday, that he commanding the vessel is to be supposed to be guilty when the fact is once established that the goods came in his vessel? Or is it his duty to land the goods and to let the revenue officers attend to that matter, or must he know that the goods have paid duty?
In one part of the United States it may be supposed that the court in trying the party under circumstances of this sort will say that the mere fact of the delivery of goods by the master of the vessel and the non-payment of duties on
and the court will instruct the jury, of course,
objection of the Senator from Wisconsin is
Mr. POLAND. It seems to me that the Senator from Maine does not precisely understand his own bill. This fourth section provides that where goods are illegally imported the goods shall be forfeited and the person illegally importing them shall be subject to fine and imprisonment. The provision in relation to the burden of proof would apply to both classes of cases-to proceedings against the
Mr. HOWE. I asked to have this amend-goods where they were libeled in the district ment excepted and to have a special vote upon court and where some person came in as a it. I did it for two reasons: first, I am utterly claimant; and would also apply to cases where opposed to the amendment as reported by the a prosecution was brought, where a man was committee. I do conceive the effect of it to indicted or informed against for having illeneither more nor less than practically to gally imported goods, or having goods illegally transfer the trial of the issue from the jury to imported in his possession, with knowledge. the court, because the issue is guilty or not Now, I entirely agree with the Senator from guilty; that is all there is of it; the Govern- Maryland that in a prosecution against a man ment says the defendant is guilty, and he says where you treat him as a criminal, where you that he is not. Practically the Government institute proceedings against him for the purgoes on and marshals its testimony, makes out pose of subjecting him to fine and imprisonas strong a case of guilt as it is able to do. ment, it is altogether wrong to undertake to The defendant has no testimony, or has it and interfere with the common-law rules of eviintroduces it. This statute says that whenever dence. He is entitled to have his case go to the trial stops or before it stops, if the court the jury untrammeled by any such provision; sées fit to do so, the court may say, 66 Gentle- and as I understand the effect of the amendmen of the jury, here is a case of guilt made ment which my colleague proposed, and which out; now I instruct you to find this man guilty, was adopted yesterday, it relieves it entirely of unless the testimony subsequently satisfies you any application to that class of cases; it merely that he is innocent." That is one reason why makes it apply to cases where a proceeding is instituted against the goods; what is knownthat is a technical term-as a seizure case, that is, where certain goods are libeled as having been unlawfully imported.
them is a prima facie case from which his guilt is to be presumed, because they will say that that thing itself constitutes probable cause. Or I will give the Senator another instance. Say that goods are imported into this country by A, and in the course of five days thereafter B is found in possession of them, and B is prosecuted. Now, I desire to know of the Senator if B is to be presumed guilty when the fact is shown that the goods were improperly imported and had not paid duty. So recent a possession as that certainly ought to constitute some evidence of guilt; it ought to constitute a prima facie case anyhow, and make it obligatory on the defendant to show facts exonerating him. But is that the intention of the section? One court may say that five days' possession is so very recent that the party in possession of the goods will be presumed guilty, and it devolves on him then to show that he is not guilty. Another court in another section of the country may say it requires twenty days; another may say it requires forty days, or that forty days' possession is yet so recent that probable cause is made out against the party.
I merely suggest these difficulties. If the section is left as it is now proposed by the committee, there can be no uniformity in the establishment of guilt in the courts of the United States. There is no prima facie case except that which is framed in the breast of the court itself. Is that the intention of this section? Mr. MORRILL. Yes.
'Mr. HENDERSON. If that be the intention I cannot vote for it; but if the Senatorbe will say that one fact being established-I care not what that fact may be-if he will say that the importing of goods by an individual who is owner of the goods, and the neglect or refusal to pay the duties being established against the party, however innocent his intention may be, a prima facie case of guilt shall arise against him, and it shall devolve on him, then, to show that he is innocent, I am willing to vote for it; or if he will say that although the party did not import the goods himself, but was an innocent purchaser of the goods, I am willing to say that on the fact of the purchase of goods improperly imported being established the presumption of guilt shall arise until the man establish his innocence.
Mr. MORRILL. Establish it to whose satisfaction?
Mr. HENDERSON. Let there be uniformity; let the establishment of the fact go to the court, because then there will be uniformity. The court will certainly always instruct the jury hypothetically, that if the jury are satisfied from the evidence in the case that A imported the goods illegally and that B purchased the goods from A, they will presume B to be guilty unless he shows that he innocently purchased them. That would make a perfectly clear case. The court would instruct upon the fact and instruct the jury of course hypothetically. This would leave it to the jury to say whether the original fact upon which the presumption is to be based has been established or not. But I really cannot see the meaning of this proposition as it stands, because the section in the first part of it requires that there shall be guilty knowledge, and it devolves upon the Government to prove that fact; but in the latter part of it it is distinctly stated that the burden of proof shall rest upon the defendant to show his innocence where probable cause is shown for the prosecution. Then this "probable cause" is left to the discretion, left in the bosom of each and every judge, and there is no uniformity in the practice.
I hope the amendment will not be adopted in its present shape. I am perfectly willing to take that portion of the section proposed to be struck out, for I think that covers all that could be desired. I understand the design of the committee is to reach all guilty parties. Although we allow the presumption of guilty knowledge in a case of this sort, the defendant may show himself to be innocent, or may produce evidence tending to show his innocence, or at least bring it within a reasonable doubt;
I object to it.
But I wish to call the attention of my friend from Maine to an amendment that has been incorporated here since the bill came from the committee, which seems to me to be entirely foreign to the whole purpose of the section in which it stands. I ask to have the amendment as it now stands reported.
The Secretary read the amendment, which was to strike out the 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 the following: "and the burden of proof in cases of seizure shall lie upon the claimant where probable cause is shown for such prosecution, to be judged of by the court before whom the prosecution is had."
Mr. HOWE, The whole purpose of the section is to punish men for importing goods contrary to law, or buying them or selling them after they have been imported contrary to law; and it declares that if a man imports goods in violation of law, that is without paying the duties, the goods shall be forfeited and he shall be punished so and so; and the purpose of the amendment reported by the committee was to regulate the proof on the trial of such an issue, but the amendment as it now stands is that in case of seizure (which is a case not contemplated by the section,) the burden of proof shall be on the claimant, who is a new party, a party that cannot be present upon any trial contemplated by the sectionthe burden of proof shall be upon the claimant on such and such conditions which is entirely foreign, as it seems to me, to the whole purpose of the section. I think that it ought to be corrected, if no more.
Mr. MORRILL. It seems to me that the
It seems to me there is nothing wrong in our saying that where the fact of illegal importation is proved, then if the party should excuse himself upon the ground of some accident or some inadvertence, the burden of proof should be upon him; and as I understand, the effect of this amendment is to confine it merely to that class of cases, to proceedings against the goods. To be sure in this section they do not go on and provide anything in relation to the mode of proceeding against the goods in order to procure a forfeiture; but that is already provided for by other laws, and, indeed, I do not know but by some other section in this bill. At any rate we have other statutes that apply to that class of cases, and this amendment merely confines this rule of evidence, as I understand it, to proceedings against goods, and entirely takes away the effect of this clause in relation to the burden of proof in relation to prosecutions against the person.
Mr. MORRILL. Which prosecution of the goods, the Senator will allow me to say, is not contemplated by this section, and therefore it is irrelevant, to say the least of it.
Mr. POLAND. It leaves this section to apply to seizure cases merely, proceedings against the goods. Perhaps it may not exactly be cognate to the section itself, and it is perhaps unnecessary, because I think the act of 1799, that was referred to yesterday, establishes precisely the same rule in seizure cases, and unless this bill repealed it there was no necessity for having this clause in.
Mr. MORRILL. That was the answer I was about to make to the Senator. My understanding of the bill is a little different from his. This
provision certainly is not necessary at all in the view the Senator from Vermont takes of it.
proposed, and which we adopted yesterday, it seems to me relieves it of all difficulty, and it is precisely proper that it should be passed in the form in which we amended it.
Mr. POLAND. If you leave the act of 1799 in force, it is not.
Mr. MORRILL. The case of a libel against the property is already provided for by other acts. But the Senator will see that this section by no possibility can apply to the property by the very use of the language, "the onus probandi shall lie upon the defendant where probable cause is shown for such prosecution." That is, as to a prosecution against the person, not a libel against property.
Mr. POLAND. I understand the section now to read, as amended, "and the burden of proof in cases of seizure shall lie upon the claimant."
Mr. MORRILL. Yes, sir; but I am speaking of the intent of this section. It was to provide a remedy against the person, and not against the property. We have a remedy against the property in the laws already provided for. Now we propose to provide an additional remedy against the person, and the amendment of the Senator from Vermont, [Mr. EDMUNDS,] ignoring that part, makes a provision for a proceeding against property. That amendment ought not to be accepted, first because it has no application to the bill and is not necessary, and whether the Senate will accept this provis ion or not is a question that is entirely independent of that; whether they will do it or not depends upon whether the Senate is disposed now to apply the same principle as to the burden of proof against a man who is charged with violating the law that has been uniformly applied against his property when you were proceeding in rem against it. That is all there is
Mr. POLAND. It is very true that this section does not provide specifically for proceedings by way of libel in what are termed seizure cases, but it does provide for the forfeiture of goods. The subject is not entirely foreign to this section, as the Senator from Maine says. It provides that where goods are illegally imported the goods themselves shall be forfeited and the person illegally importing them shall be liable to be punished by fine and imprisonment. As the bill was drawn it intended to make this change in relation to the burden of proof apply to both classes of cases, to proceedings against goods, what are known technically as seizure cases, and also to prosecutions against the person for illegally importing them or having them in possession after they were illegally imported with knowledge.
There is nothing new in reference to this. We had statutes before which forfeited goods | that were illegally imported, and statutes providing for proceedings of that character. We had also statutes before this that provided penalties for smuggling. There is nothing new in this unless it provides a higher penalty, a greater penalty than the law did before. As this last clause of the section stood originally, and as the amendment that the committee proposed to it stood until amended, it applied to both classes of cases where goods were liable, and where a person who was prosecuted for being a smuggler, for illegally importing goods. In both classes of cases, upon the fact of illegal importation being proved, the burden of proof was thrown on the individual. It seems to me just and right, so far as the proceeding against the goods is concerned, and perfectly competent for us to say-violating no rule of law, no constitutional provision, not invading this particular right of trial by jury, and of having them pass on all the facts of the case-"If you illegally import goods, and the fact of the illegal importation be shown, the goods shall be forfeited unless you have some excuse that you are able to produce and show; we cast the burden on you." But when you proceed against the man as a criminal, undertake to charge him with a crime, and subject him to fine and imprisonment, then I think the principle that the committee undertook to establish here is all wrong; but the amendment that my colleague
Mr. JOHNSON. I have no doubt that the honorable member from Vermont is right that we have the power to make the law as the amendment suggested by his colleague would make it; but that is the law now in relation to seizures. The seventy-first section of the act of 1799 says that in all cases of seizures of goods liable to forfeiture the burden of proof shall be cast upon the claimant. When this section says that goods illegally imported shall be forfeited, it brings the goods within the operation of the act of 1799; and that provides precisely what would be provided for by the amendment suggested by his colleague, as I think the honorable member will admit.
I endeavored to distinguish the rules prescribed by the section of the act of 1799, relied upon yesterday, from the principle contained in the amendment of the committee, and I am glad to find that the honorable member from Vermont [Mr. POLAND] agrees that that distinction was well taken, and I understood his colleague, who offered the amendment which is now before the Senate, to agree also in the same view. The fourth section has two objects. The first is to provide that the goods illegally imported shall be forfeited. That is one of their amendments, and the second is that the party who imports or the party who comes into possession of the goods knowing them to have been illegally imported shall be personally liable to punishment if convicted.
I have no doubt that the act of 1799 in the provision referred to was clearly within the authority of Congress; and of course we could provide in the same way now; and that is all that is done by the amendment suggested by my friend from Vermont, [Mr. EDMUNDS.] But it seems to me that it is unnecessary, because the law will be precisely the same. If we pass the fourth section unchanged in the particular in which it provides that the goods imported shall be liable to be forfeited, then we bring the goods under the operation of the act of 1799, which authorizes the Government to proceed by way of libel against the goods, and the act then provides that whoever comes in and claims the goods as his own shall be compelled to establish his case. That is reenacting the act of 1799, and that is all, as I think.
Mr. GUTHRIE. There is a great necessity for a rigid enactment to prevent the smuggling of imported goods into the country; and in the customs' laws we have always provided for seizures, and under the internal revenue laws goods are liable to seizure after they pass from the hands of the manufacturer if the duties have not been paid. It is impossible to enforce these laws without some such provision.
ness. He explained to me how it was done, and I expect that he gave me a very accurate
I think we must go on the presumption that every man who comes into the possession of goods that have been imported into the country is bound to know that they have been reg ularly entered and the duties paid, and it is his business to know, if he is a regular trader. If a man goes to New York or Boston or any of these eastern ports to buy goods, or if he purchases on the Canada borders, it is his duty to know that the goods have been entered at the custom-house and have paid the duties. If he does not know it, and you make your law so that he is not bound to know it, you encourage smuggling. I am willing to vote for this bill because I think in all our laws on this subject we must assume that it is the duty of the individual who purchases goods upon which there is duty levied to see that they have been regularly entered and the duty paid; and a declaration in your law that he is presumed to know that fact, and that he is guilty if he does not know it is perfectly correct. You will never enforce your revenue laws without such a principle, in my judgment,
Mr. HENDERSON. I understand that if we concur in this amendment, in prosecutions in criminal cases the burden of proof will not lie on the defendant; there will be no presumption against him.
Mr. MORRILL. That is so; that is the effect of it.
I have made up my mind to vote for this bill without question, without doing any injustice to my conscience. I take it for granted that every man who imports goods enters them at the custom-house if he intends to do honestly, and I take it for granted that every man who purchases imported goods takes care that he deals with individuals who comply with the law. When I was Secretary of the Treasury I was hunting for the means to prevent smuggling on the Canada coast, and a gentleman introduced to me an individual who he said could give me all the information I desired on that subject, and sent him to me with a little note. I told him that the friend who introduced him wished him to tell me all he knew on the subject. "Well," said he, "when I was engaged in smuggling there was very little profit unless the duty was twentyfive per cent. We had to pay ten per cent. for running the goods across; it had to be done in the night. Then we had to make an allowance of ten per cent. to the merchants who purchased of us, or they would not buy of us, and we could not hide the goods when we got them across; and if there was not five or ten per cent. left to us there was no profit in the busi
Mr. MORRILL. I want the first question to come upon the amendment moved by the Senator from Vermont, [Mr. EDMUNDS,] which was to the original amendment, applying it to cases of seizure alone.
Mr. PresidentMr. McDOUGALL. Allow me to ask a question. Why make a new law of evidence in maritime law? Is there any cause for it? Mr. EDMUNDS. There is no cause whatIt is the old rule. Mr. McDOUGALL. Then why make the provision here?
Mr. EDMUNDS. That is just what I am about to explain. The amendment which I offered in committee was agreed to. This amendment of the Committee on Commerce being under consideration in Committee of the Whole yesterday, I proposed the amendment which has been named. That amendment to the committee's amendment reporting the bill was agreed to. Then the whole amendment was agreed to in committee and reported, so that the only question now possi ble before the Senate is on agreeing to the amendment reported by the Committee of the Whole, if I correctly understand parliamentary
Mr. MORRILL. Now, allow me. The Senator from Wisconsin [Mr. Howe] took excep tion to the amendment of the Senator from Vermont alone, and stated that he desired to try that question of the proposed amendment of the Senator from Vermont applying the rule to cases of seizure. That was the proposition.
Mr. EDMUNDS. If the Senator from Wisconsin undertook to make that reservation, it was totally beyond his power and that of the Senate regularly to grant it, because there was no such question pending.