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Senator from Wisconsin that that does not tem efficient and uniform everywhere. It seems ployed under this bill, or under the amendment answer my question. He does not answer the to me that the measure as it now stands, with || reported by the committee which you have statement that I made.
the amendment, if Senators desire the amend- rejected. Very likely the collector or deputy Mr. HOWE. Then I did not understand ment to be added, would accomplish a great collector can exercise the power, and there is the question.
deal; it is a very different thing from what was one everywhere where a vessel is authorized to Mr. CLARK. Then you should not have | reported from the Committee on Commerce. unload; and very likely this officer himself is attempted to answer it.
Mr. MORRILL. I want to call the attention | equal to the emergency. I do not know what Mr. IIOWE. I thought I did understand it. of my friend from Wisconsin [Mr. Howe] to regulations this board of commissioners would
Mr. CLARK. I suggested that I had no a single remark that he let fall. That Senator | adopt; I do not know what regulations the objection to the General Government aiding | is always critical; he means to be just, I have || Secretary of the Treasurv would adopt. I only the States, and the Senator from Michigan said no doubt, but when he says that this resolution say that I was not very much in favor of the that that could not be done, and I asked him | provides for the payment of all the expenses Government's taking this work upon its hands why,
incurred by the States in their systems of quar at all; and therefore I was not very much in Mr. HOWE. I did not understand the antine, touching this subject-matter, he is very favor of the adoption of the amendment requestion.
wide of the mark, I beg to say. The Govern- | ported by the committee. I voted for it mainly Mr. CLARK. I though you did not. ment by this measure does not propose to pay because I found so many here denying that the
Mr. HOWE. I plead guilty. I do not know the expenses of the States for anything they | Government had any authority in the matter. that I was to blame for it altogether.
may do for the protection of the public health I voted rather to assert the authority than Mr. CHANDLER. I understood the Sen in the States. The Secretary of the Treasury because I wanted to have it exercised; but I ator to say that where the States had no sys would not be authorized to pay the first shil am utterly opposed to our intervening at all tem, he did not object to the national Govern ling of the expenses of the local authorities. under the direction of the several municipali. ment enforcing a system.
He is simply authorized to aid the States, and ties. Mr. HOWE. That is precisely the way I as much money as is necessary to pay for what Mr. HENDERSON, If the Senator from understood him.
the Government does is to be appropriated for Wisconsin will turn to the law that was adopted Mr. CHANDLER. That is what I under that purpose for the aid it renders, not what in 1799, and which has been referred to, I think stood and what my colleague says he did say; the States do. We pay for the aid which we he will see that at least Congress at that time and that is what I answered.
authorize the General Government to give; || supposed that it was altogether proper to pass Mr. CLARK. The Senator will bear in we do not authorize the Secretary of the Treas a law similar to the one we now have under mind and remember exactly what I was say. ury to pay the expenses of the sanitary and consideration, not for the purpose of making it ing and the line of remark I was making, that health regulations of the States by any means. the duty of the officers of the United States to I had no objection--the Senator from Wiscon I suggest, therefore, to my honorable friend carry out State laws and to bring about an exsin will reinember it, because it was an allu that his criticism, while it is a little harsh, is pense upon the Treasury by so doing, but for sion to a remark that he had made about the a little unjust.
the purpose of making it obligatory upon the national Government dancing attendance on Mr. HOWE. If I have done injustice to Federal officers in the discharge of duties under the State governments—that I had no objec this resolution, I feel condemned. The man the United States to obey those State laws. If tion to the national Government aiding the that would deliberately do injustice to such a I understand this resolution, it means nothing State governments. The Senator from Mich resolution as this, I think would be unjust to more and nothing less than that. igan says it cannot be done.
cholera itself, for I do not know of anything The Senator assumes that in all probability Mr. CHANDLER. I said it could not be more obnoxious in itself than the resolution at New York they may have quarantine regudone where no system was adopted by the except cholera, the naked and pure article. lations, but that at the city of Brooklyn they local authorities.
Mr. President, I do not know but that I may have none. That is presuming that the Mr. CLARK. Let us see, Mr. President, || ought to accept without qualification the criti- | people of New York are willing that the cholwhether it cannot be done. These gentlemen cism of my friend from Maine. He says that era may enter into the State through Brooklyn, contend that the national Government have the resolution does not intend that the Govern but not through the city of New York. Is such plenary power. That is the basis on which ment shall pay for anything that the States do, a presumption at all reasonable? We must rely their proposition goes. Now, take it for but only for what the Government does in aid something upon the people of the respective granted that there is no quarantine in the of the States. I guess it is a pretty correct States. State of New Jersey, and the Government statement; but how far it circumscribes my The Senator complains that we leave it to have plenary power to establish it, why cannot idea of the extent of the expenditure is a ques; the different cities to adopt any sort of quaran: the Secretary of the Treasury do it under this tion to be considered. Grant that the national tine regulations they choose, and we in this resolution by his revenue-cutters and revenue Treasury will only pay for what the nation does, resolution make it the duty of the Federal offiagents ?
how will the work be divided? The city of cers to carry it out, and thereby entail an exMr. CHANDLER. Because the resolution New York and the city of Boston and each of pense upon the Government. Let me ask if it is does not give him the authority to do so. the other cities threatened with the introduc possible that any expense can come to the Gov.
Mr. HOWARD. They are to be used in tion of cholera, will say “We want quarantine ernment under this resolution. It authorizes aid of the State quarantine.
regulations; we want an officer here that shall the Secretary of the Treasury to employ the Mr. CLARK. To be used in aid of the command a ship coming from an infected port, revenue officers in the execution of such orders States, not of a particular State.' Where the
into quarantine; that is what we want." That as he may make upon the subject. I did not States have failed to do it, then the General the State will do, and there will be no pay move to strike out that clause which appropri: Government may do it.
ment for saying that; but the Secretary of the ates whatever sum may be necessary, though Mr. HOWARD. Take a case where there | Treasury will say to the collector or the deputy || I can see no use in it; but I submit to the Senis an utter absence of all such regulations on collector, or some health officer that he desig ator from Wisconsin whether it is possible that the part of the State, where the State has em nates for that duty, “ Take your stand there at one dollar of expense can be entailed in the ployed no force and no agency whatever in the the gateways of that port, and order all these execution of this resolution. I cannot conceive shape of quarantine regulations; what power vessels into quarantine as they approach;' and that a dollar of expense can come upon the does this resolution give to the United States for that the national Treasury pays; for this United States in consequence of it. authorities to interfere in that particular State service
Mr. HOWE. Then strike out that clause, in any way on the subject of quarantine?
Mr. GRIMES. The detention of the vessel ? and close the Treasury. Mr. CLARK. If the Senator from Michigan Mr. HOWE. For keeping the officer there, Mr. HENDERSON. I have no objection; is disposed to construe the language so tech and whatever is necessary to put her into quar I did not put it there. In the amendment nically, it is the easiest thing in the world to antine and detain her there. That is all the which I offered I made it obligatory upon the amend the resolution in that particular, and expense there is under any system, and that || Secretary of the Treasury, in carrying out these say, where the State fails to do it then the the national Treasury pays for; but for the regulations, to employ officers already upon General Government may do it.
mere head-work, for the mere application, for duty, and who are receiving their salaries. Is Mr. CHANDLER. That was the committee's the simple decision of the port or city authori it possible that it will be necessary to pay them proposition.
ties adjacent to the port where they want these additional salaries? I think not. The SenaMr. CLARK. I am entirely willing that the regulations established, there is no payment to tor is altogether mistaken when he supposes resolution should be amended in that particu be made and no expense incurred.
that under this joint resolution any additional lar, if Senators desire it, if that is the carping Gentlemen have inveighed a great deal expenditure can be made. I cannot conceive objection they make to it.
against the danger growing out of the use of of anything of the sort. Mr. CHANDLER. That is the only differ this word “uniform." What is the danger? The Senator asks, why, then, is it necessary ence between the two resolutions.
What does it mean? It means nothing in the to make it obligatory upon these officers to Mr. CLARK. The Senator from Michigan || world more than that no matter to what port a observe the quarantine laws of the States? I says that that is the only difference between the vessel is destined, if she has cholera on board, agree with him as to the supremacy of the laws two resolutions !
she may be ordered into quarantine, or for the of Congress, so that if under an act of ConMr. CHANDLER. The chief difference. purpose of examination she may be stopped gress a ship is authorized when it comes to the
Mr. CLARK. Pray, where did the Senator and searched. This is just as necessary in one port of New York to discharge its freight imlearn the English language or its force? The port as another; and doctors say, and I believe, | mediately it can do it independent of the quarbill as reported from the Committee on Com that it is of no sort of use in any port unless it antine laws of the State. What is the meaning merce overruled State legislation entirely, if be observed in all ports. It does not follow that of this resolution? It is to make the officers the Secretaries chose to do so, to make the sys there is to be a multitude of new officers em of the Federal Government obey the State
quarantine laws-to put it in the power of the | by the first clause; there the Secretary of the ADMISSION OF COLORADO-VETO. Secretary of the Treasury to make it obliga- | Treasury is clothed with the authority to make
Mr. EDWARD Cooper, Secretary to the Prestory upon them to obey those laws and not to orders and regulations. disregard them. The Senator from Wisconsin Mr. HENDERSON. Let me ask the Sen
ident of the United States, appeared below the
bar and delivered the following message: will recollect that there are laws, the revenue ator if it is at all likely the Secretary of the
Mr. President, I am directed by the Preslaws, which permit vessels, when they arrive Treasury will employ other oflicers than the
ident of the United States to return to the Senat a port of the United States, within a certain officers of the Treasury already in the differ
ate in which it originated, a bill (S. No. 74) time to land and discharge that freight in ware ent ports of the United States in the execution
entitled "An act for the admission of the State houses of the United States. Suppose that the of these quarantine laws? If so I am willing
of Colorado into the Union," with his objeclaw of the State of New York prohibits a ves to limit his power; but I cannot imagine that tions in writing. sel from landing there on account of the fear the Secretary of the Treasury, already having of contagious diseases; there is a conflict of command of the revenue officers in the differ
APPOINTMENTS AND REMOVALS. jurisdiction at once; there is a conflict between ent ports, will put the United States to any Mr. HENDERSON. I desire to call up a the Federal law and the State law. Now, sup additional expense, but that he will employ bill that I introduced a few days ago-Senate pose that the collector of customs at New York the officers of the revenue-cutters in that way. bill No. 315--to regulate appointments to and city, obeying the Federal law, should order a Mr. HOWE. My friend from Missouri and removals from office. I desire merely to call vessel up into the port of New York, and order myself can end this controversy very suddenly, it
up, with a view of referring it to the Judiciary it to discharge its freight and passengers there I think. Just make the resolution that it only Committee. The committee, I understand, against the quarantine laws of the State of | authorizes him to employ the revenue officers meets to-morrow morning and I desire that it New York, or of the city of New York, passed in the execution of the local quarantine regu shall be referred to them for action. under State authority, the Senator will see at lations, and shut up the Treasury, and I do The PRESIDENT pro tempore. The Chair once that a conflict of jurisdiction would arise. not care how it is.
will entertain the motion to commit. The law of 1799 provides for a case of that Mr. HENDERSON. Strike out the latter The motion was agreed to. sort. The idea there was to give the power to part of the resolution ; that shuts up the Treas
PREVENTION OF SMUGGLING. the Secretary of the Treasury to make the rev ury. enue collectors and all the officers in the dis Mr. HOWE. That shuts up the Treasury,
Mr. MORRILL. I call up the special order. charge of Federal duties in the respective ports but it does not cut out the first part.
The PRESIDENT pro tempore. That is obey the quarantine laws of the States, and The PRESIDENT pro tempore. The ques
now before the Senate, being Senate bill No. that is the only meaning of this resolution now. tion is on ordering the amendments to be
222, to further prevent smuggling, and for other If gentlemen insist that there are some cities | engrossed, and the joint resolution to be read purposes. in the United States that have adopted no the third time.
Mr. IIOWARD. I move to set aside all quarantine regulations, and that it is necessary
Mr. JOHNSON called for the yeas and
other orders and take up Senate bill No. 109. nays,
Mr. FESSENDEN. I hope not. that they should be adopted, an amendment and they were ordered; and being taken, remay be added, but I do not think it is neces sulted-yeas 27, nays 12; as follows:
the special order which was laid over yester
day; and I want to take up some appropriation sary: The people of Brooklyn, if cholera is YEAS-Messrs. Buckalew, Clark, Davis, Dixon, - to visit the United States, will guard and pro
Doolittle, Edmunds, Fessenden, Foster, Grimes, bills as soon as it is disposed of.
Guthrie, Harris, Henderson, Hendricks, Johnson, Mr. HOWARD. The bill to which I call tect themselves against its introduction there Kirkwood, Lane of Kansas, Morgan, Morrill, Norton,
attention has been up once. just as efficiently as the people of New York. Poland, Pomeroy, Sprague, Stewart, Sumner, Van Winkle, Willey, and Wilson-27.
Mr. MORRILL. So will the people of New Orleans, the people
This is the unfinished NAYS-Messrs. Chandler, Conness, Howard, Howe, of Richmond, the people of Portland, the peo
business of yesterday. We can soon finish it. McDougall, Nye, Ramsey, Riddie, Trumbull, Wade, ple of New London, and the people of every Williams, and Yates-12.
The only question is on concurrence in some
amendments. other city. The first section of the act of 1799
ABSENT-Messrs. Anthony, Brown. Cowan, Cra
gin, Creswell, Lane of Indiana, Nesmith, Saulsbury, The PRESIDENT pro tempore. The quesis in these words: Sherman, and Wright-10.
tion is on the motion of the Senator from “That the quarantines and other restraints, which The joint resolution was read the third time, | Michigan. shall be required and established by the health laws
and passed. of any State, or pursuant thereto, respecting any
Mr. MORRILL. The Senator is not aware, vessels arriving in, or bound to, any port or district
Mr. HENDERSON. I desire to amend the
perhaps, that this bill comes up as a special thereof, whether from a foreign port or place, or from title of this joint resolution, so as to read, "A another district of the United States, shall be duly
order and is now before the Senate. observed by the collectors and all other officers of resolution respecting quarantine and health
Mr. CHANDLER. It can be finished in the revenue of the United States, appointed and laws." I think that would be a better title,
five minutes. employed for the several collection districts of such and I move that amendment. State respectively, and by the masters and crews of
Mr. HOWARD. Very well. I withdraw
The title was so amended. the several revenue-cutters, and by the military offi
the motion. cers who shall command in any fort or station upon
MESSAGE FROM THE HOUSE.
The PRESIDENT pro tempore. The bill the sea-coast," Suppose a military officer commanding there
A message from the House of Representa (S. No. 222) further to prevent smuggling, and now should absolutely refuse to regard the
tives, by Mr. LLOYD, its Chief Clerk, announced for other purposes, is before the Senate; and
that the House of Representatives had agreed the question is on concurring in the amendments quarantine laws of the respective States, ought
to the amendments of the Senate to the bill made as in Committee of the Whole, which there not to be some power vested in some officer of the Government to restrain and con
(H. R. No. 280) making appropriations for were excepted out of the general scope of the service of the Post Office Department dur
amendments that were concurred in. The first trol those men and make them obey those quarantine regulations?
ing the fiscal year ending the 30th of June, excepted amendment will be read.
The Secretary read the first excepted amend"And all such officers of the United States shall be, and they hereby are, authorized and required
The message further announced that the ment which was in section four, line thirteen, faithfully to aid in the execution of such quarantine House of Representatives had passed without to strike out the words and the guilty knowland health laws, according to their respective powers amendment the joint resolution (S. R. No. 88) edge of the defendant, when convicted of the and precincts, and as they shall be directed, from time to time, by the Secretary of the Treasury of the
authorizing the Secretary of War to grant the fact, shall in all cases be presumed unless he United States."
use of certain lumber for the fair for the Sol or she prove the contrary'' and in lieu thereof So the Senator will see that this resolution diers' and Sailors' Orphan Home.
to insert the following: now is in perfect accordance with the law of
The message also announced that the House And the onus probandi in cases of seizure shall lio 1799. The second section of that act provides :
of Representatives had passed a joint resolu upon the claimant where probable canso is shown for “That when by the health laws of any State, or by tion (H. R. No. 134) relative to appointments
such prosecution, to be judged of by the court before
whom the prosecution is had. the regulations which shall be made pursuant thereto, in the Military Academy of the United States;
Mr. MORRILL. I should like to make a any vessel arriving within a collection district of such in which it requested the concurrence of the State, shall be prohibited from coming to the port of
verbal amendment to which nobody will obSenate. entry or delivery by law established for such district,
ject, in that amendment, to use the phrase and it shall be required or permitted by such health
ENROLLED BILLS SIGNED.
“burden of proof" instead of
onus prolaws, that the cargo of such vessel shall or may be unladen at some other place within or near to such
The message also announced that the Speaker bandi." district, the collector authorized therein, after due
of the House of Representatives had signed the The PRESIDENT pro tempore. That correport to him of the whole of such cargo, may grant
following enrolled bills and joint resolutions ; rection will be made if there be no objection. his especial warrant or permit for the unlading and discharge thereof under the care of the surveyor, or
which were thereupon signed by the President Mr. JOHNSON. I think there were two of one or more inspectors, at some other place where | pro tempore:
amendments proposed by the committee, one such health laws will permit."
A bill (H. R. No. 310) to change the place to strike out and the other to insert. I supSo the law now, instead of inflicting any of holding the courts of the United States for pose they can be divided. expense upon the Government, only gives power the northern district of Mississippi ;
The PRESIDENT pro tempore. A motion to the Secretary of the Treasury to order the A joint resolution (S. R. No. 88) authorizing to strike out and insert is not divisible.' officers of the United States to conform to and the Secretary of War to grant the use of certain Mr. JOHNSON. That seems singular. assist in carrying out the laws that may be lumber for the fair for the Soldiers' and Sailors? The PRESIDENT pro tempore. If the moadopted in the respective States. Orphan Home;
tion to strike out and insert shall be rejected, Mr. HOWE. The Senator either misappre A joint resolution (H. R. No. 66) relative to a motion to strike out will then be in order; hends the state of the resolution, or else I the courts and post office of New York city; but under the rules of the Senate a motion to misapprehend the force of it. This power to and
strike out and insert is one motion and not direct the revenue officers is an additional A bill (H. R. No. 397) to authorize the coin divisible. power, a power in addition to the power given ll age of five-cent pieces.
Mr. CONNESS. I hope the Senator from
Maine, who has charge of the bill on behalf land reminds me that I do not bring to this vides that before the party can be guilty he of the committee, will change the form of his discussion the large professional experience shall fraudulently or knowingly import or asmotion and move first to strike out so as to which we all know belongs to him. Sir, no sist in the importation of goods against the simplify the matter, in order that we may vote body can regret that more than I do, nor am I law, that is, with a design not to pay custom separately on the propositions.
unwilling that the Senator should remind me duties. The second clause of it applies to Mr. JOHNSON. Åslunderstand the ruling of it. I bring to the question nothing but an those individuals who shall attempt to sell and of the Chair, the amendment proposed is one honest judgment.
to assist in the transportation through the that cannot be divided ; but if it shall be voted Mr. JOHNSON. I do not doubt that. country of goods that are thus fraudulently down we can then move to strike out the clause Mr. SUMNER. I bring to the question || brought in. The Senate will see that it reas it stands in the bill. Before the vote is nothing but an honest judgment, with some quires, first, a fraudulent knowledge of the taken I beg leave to add another remark or slight recollection of early professional study. || inproper importation; and secondly, even if two to those which I submitted yesterday to the That is all I pretend to do. But bringing such he assists in receiving, buying, or selling the Senate against this amendment.
as I have to the discussion, the Senator from || goods, it must be with a knowledge that they The honorable member from Massachusetts Maryland will pardon me if I suggest to him were imported contrary to law. Now, sup(Mr. SUMNER) yesterday, said, in regard to what it seems to me are two mistakes on his pose that a prosecution is lodged against an the burden of proof, or the onus probandi, as part on this occasion.
individual thus situated. He has either imit is classically termed-my friend from Maine In the first place, he argues on this proposi- || ported the goods into the country and failed does not like the classic language, [laughter]— || tion as if we were to bring it to the test of to pay the duties, or he has purchased the that it was a very common thing in court that existing law. Now, bringing it to the test of goods after they are imported. What is necesthe onus probandi or burden of proof is changed existing I am not going to argue that the sary to be established in order to produce a from one to the other of the litigants as the proposition could be sustained; but the ques conviction? Is it not a knowledge of the fact? case may progress. That is all true; but how tion is whether it is not in our power to declare Is it not necessary for the prosecution to show is it done in a civil suit? It is left by the court a new rule applicable to this case to meet what that the party thus affected must have shown to the jury to say that if they believe that the I said yesterday was the stringency that seemed
of the violation of the law? Then it rests upon fact was so and so, then it is for the other side to be required, and there I diifer with the the United States to establish guilt, to show & to satisfy them that notwithstanding this fact learned Senator. It does seem to me that it guilty knowledge. There can be no question the plaintiff is not entitled to recover, or what is clearly within our province to lay down this about that fact; and the original bill it seems ever the effect may be. Now, what is the rule, and if it is within our province I think provided that if the fact itself were shown, effect of this amendment? I am not bringing that the exigency demands it; and therefore that is, if the party was found in the possession now the arts of the practicing lawyer, which the Senator will pardon me if I put aside ab of goods that had not paid duty, or if the party my friend from Massachusetts seems to sup- || solutely all his ingenious argument, which is had bought goods that had been thus imported, pose I am always resorting to.
founded on existing law, and which goes to whether he kuew the fact of the illegal imporMr. SUMNER. Oh, no.
show that according to existing law this can tation or not, guilty knowledge should be preMr. JOHNSON. He does me great injus. not be done.
sumed. “The guilty knowledge of the defendtice in any such supposition. If I have any of I put it all aside; but then I am not willing | ant, when convicted of the fact, shall in all the arts belonging to the practicing lawyer, I to stop there. I remind the learned Senator cases be presumed unless he or she prove the do not bring them into this forum knowingly; || and no one needs to be reminded of it less- || contrary. and let me say that if my friend from Massa that there is a whole class of legal presump I can understand that provision. That chusetts had been at the bar as long as I have tions, presumptions of law in contradistinction will produce uniformity in the administration been, I think, perhaps, some of his speeches to presumptions of fact, which when they occur of justice under this bill. When the fact is would be, as far as the law is concerned, a little are considered the grounds of conclusion in a once established against a party that he is more sound than they are. [Laughter.]
Certain facts appear; to those the court found in possession of goods fraudulently The effect of this amendment is to take from | apply not a conclusion merely of fact, but an brought by somebody, then guilty knowledge the jury the finding of the fact. If this section absolute conclusion of law, and that we call a is to be presumed against him. Where a party passes as it is, instead of telling the jury that || presumption of law. How often that occurs in has struck another with a deadly weapon, beis if they believe that the goods were imported || criminal proceedings; I will not go into details, | presumed to have done it with the intention to contrary to law, and if they believe that the but the Senator will remember them, I dare || kill, because of the fact that it is a deadly defendant, if he is prosecuted, as having bought || say, by the dozen, much more freshly than I weapon; and when once that fact is shown, the goods, or being in possession of goods illegally should. Suffice it to say they do occur; and presumption of law arises that the assault was imported, really bought the goods in fact, or now, as I understand it, here is simply one with intent to kill and malice is presumed from was found in possession of the goods, then tbey more presumption of law which it is proposed the act itself, and it then devolves upon the must convict unless he shall be able to account to add to other presumptions of law.
defendant to show facts that will exculpate for his purchase or possession; instead of leav. The other mistake which it seems to me my him; it devolves upon him then to remove the ing it to the jury to find the fact that the goods || honorable friend fell into-I have mentioned || presumption which would naturally arise from were imported illegally, and that if imported one-was one which we all know in the excel the use of a deadly weapon. Now, the intenillegally they came into the possession of the lence of his disposition and from long profes tion of the committee originally evidently was defendant against whom the prosecution is in sional habit he is disposed to fall into-that is, that if goods were imported and the duly not stituted, it leaves it to the court to say, as I to become the attorney general of criminals. paid, the party who is in possession of the understand it, that the case as it stands upon He falls into that character easily. In short, | goods is to be presumed in a prosecution to the proof is one in which in point of law there my learned friend seems to have a warm side | have had guilty knowledge of the fact of illegal must be a conviction unless the defendant can for criminals; and whenever any proposition importation. absolve himself from the supposed prima facie || is brought forward which promises to give a Mr. MORRILL. Not merely possession, eridence of the facts offered on the part of the new restraint to crime, my learned friend finds but possession surrounded by such circumGovernment. It is, therefore, in my judgment some objection; he receives the criminal on stances as in the opinion of the court to lead to deprive a party charged in a criminal prose his warm side ; he embraces him and he resists to such an inference. cution of the security which the common law the statute. Now, I think he is under that Mr. HENDERSON. There is the difficulty. gives and which the Constitution of the United influence to-day. He resists this proposition If the Senator will provide some fact which States expressly gives, of having the offense because if adopted it will be a new restraint being established the presumption of guilt will with which he may be charged passed upon by upon crime, it will help to prevent smuggling, arise unless the defendant can exculpate hima jury; and of the right he has to have all the || and to that end certainly it will be a benefac- self, I will vote for it; but I cannot vote for facts passed upon by the jury, to have the evi tion to the country.
the amendment as it now stands—and the dence offered on the part of the Government Mr. HENDERSON. I certainly have no burden of proof shall lie upon the defendant as well as the evidence offered on the part of desire to enter into the discussion of the legal | where probable cause is shown for such prosethe traverser or accused heard by the jury. If question that has grown up between the two cution." this means anything it means to say that im Senators. I desire simply to regulate my own
Take a case.
A man is prosecuted and it portation illegal in fact and possession in fact vote on this subject, and I should like to make is shown that he cominanded a vessel which is to be considered as possession with a knowl. an inquiry of the Senator having charge of the || brought goods into this country. Am I to edge of the illegalimportation, unless the party || bill, in order to ascertain the extent of this understand, as would seem to be inferred in can clear himself of it by affirmative evidence; | provision and what is the meaning of it; for I the argument of the Senator from Oregon (Mr. , and the jury have nothing to do but to convict, | really do not understand it. The first part of WILLIAMS) yesterday, that he commanding the taking away from the jury the right to find the section provides for the punishment of a vessel is to be supposed to be guilty when the whether the fact charged existed or not, whether | person who "shall fraudulently or knowingly | fact is once established that the goods came the importation was an illegal importation or import or bring into the United States, or in his vessel? Or is it his duty to land the not, or whether the defendant was a purchaser || assist in so doing, any goods, wares, or mer goods and to let the revenue officers attend to of the goods or found in possession of the goods | chandise contrary to law, or shall receive, con that matter, or must he know that the goods thus illegally imported. Unless I am grossly | ceal, buy, sell, or in any manner facilitate the have paid duty ? mistaken, it very materially interferes with the transportation, concealment, or sale of such In one part of the United States it may be security which the Constitution gives to every goods, wares, or merchandise, after their im supposed that the court in trying the party under man charged with an offense, of having the portation, knowing the same to have been circumstances of this sort will say that the mere matter investigated by a jury. imported contrary to law."
fact of the delivery of goods by the master of Mr. SUMNER. The Senator from Mary The Senate will see that the first clause pro the vessel and the non-payment of duties on
them is a prima facie case from which bis guilt and the court will instruct the jury, of course, | objection of the Senator from Wisconsin is is to be presumed, because they will say that according to the criminal law of the land, that well taken to the proposition of the Senator that thing itself constitutes probable cause. Or the man's guilt must appear beyond any rea from Vermont. It will be seen at a glance I will give the Senator another instance. Say sonable doubt, and every other reasonable that the provision of the section is simply as that goods are imported into this country by A, || hypothesis must be excluded in order to con to the punishment of the person ; it provides and in the course of five days thereafter B is vict the defendant. It may very easily be a remedy in cases where any person “shall found in possession of them, and B is prose shown that he had no knowledge, or at least fraudulently and knowingly import or bring cuted. Now, I desire to know of the Senator a prima facie case may be shown by him, that into the United States,”' &c., any goods impropif B is to be presumed guilty when the fact is he had no knowledge of the violation of the erly imported. The penalty is provided for the shown that the goods were improperly imported | law originally in the importation of the goods. person who shall do the acts prohibited ; and the and had not paid duty. So recent a possession But to leave it within the discretion of a judge || provision is that upon such an issue as that, as that certainly ought to constitute some evi in Oregon to say what is probable cause, and the onus probandi shall be on him, the court dence of guilt; it ought to constitute a prima a judge somewhere else to say that something | having found certain things. I think that is facie case anyhow, and make it obligatory on else is probable cause, it seems to me, is pla the statement of the whole case; and on the the defendant to show facts exonerating him. 11 cing the liberty of the citizen in jeopardy, and trial of that issue this rule applies. Now, the But is that the intention of the section? One too much in jeopardy for us to let this provision | amendment of the Senator from Vermont (Mr. court may say that five days' possession is so stand. I think it ought to be stricken out and EDMUNDS) is, that upon a question of seizure very recent that the party in possession of the the original clause left as it was, or else the this principle shall apply, which would make goods will be presumed guilty, and it devolves section left without either,. It would then it apply to goods when no such issue is proon him then to show that he is not guilty. | devolve upon the prosecuting attorney in every | posed by the section. Another court in another section of the coun case to show the guilty knowledge; but I have Mr. POLAND. It seems to me that the try may say it requires twenty days; another no objection to saying that the guilty knowl Senator from Maine does not precisely undermay say it requires forty days, or that forty | edge shall be presumed when the fact itself of stand his own bill. This fourth section prodays' possession is yet so recent that probable a violation of the law shall have been estab vides that where goods are illegally imported cauise is made out against the party. lished, and it shall then devolve upon the the goods shall be forfeited and the person
illeI merely suggest these difficulties. If the defendant to show that he did not possess that | gally importing them shall be subject to fine section is left as it is now proposed by the com knowledge; that is, that the prima facie case and imprisonment. The provision in relation mittee, there can be no uniformity in the estab shall be taken against him; but beyond that I to the burden of proof would apply to both lishment of guilt in the courts of the United am not willing to go.
classes of cases—to proceedings against the States. There is no prima facie case except Mr. HOWE. I asked to have this amend- | goods where they were libeled in the district that which is framed in the breast of the court ment excepted and to have a special vote upon court and where some person came in as a itself. Is that the intention of this section? it. I did it for two reasons: first, I am utterly || claimant; and would also apply to cases where Mr. MORRILL. Yes.
opposed to the amendment as reported by the a prosecution was brought, where a man was Mr. HENDERSON. If that be the inten committee. I do conceive the effect of it to indicted or informed against for having illetion I cannot vote for it; but if the Senator 'be neither more nor less than practically to
'be neither more nor less than practically to gally imported goods, or having goods illegally will say that one fact being established—I care
imported in his possession, with knowledge. not what that fact may be-if he will say that the court, because the issue is guilty or not Now, I entirely agree with the Senator from the importing of goods by an individual who is guilty; that is all there is of it; the Govern | Maryland that in a prosecution against a man owner of the goods, and the neglect or refusal ment says the defendant is guilty, and he says where you treat him as a criminal, where you to pay the duties being established against the that he is not. Practically the Government institute proceedings against him for the purparty, however innocent his intention may be, goes on and marshals its testimony, makes out pose of subjecting him to fine and imprisonà prima facie case of guilt shall arise against as strong a case of guilt as it is able to do. ment, it is altogether wrong to undertake to him, and it shall devolve on him, then, to show The defendant has no testimony, or has it and interfere with the common-law rules of evithat he is innocent, I am willing to vote for introduces it. This statute says that whenever dence. He is entitled to have his case go to it; or if he will say that although the party did the trial stops or before it stops, if the court the jury untrammeled by any such provision; not import the goods himself, but was an inno sees fit to do so, the court may say,
and as I understand the effect of the amendcent purchaser of the goods, I am willing to men of the jury, here is a case of guilt made ment which my colleague proposed, and which say that on the fact of the purchase of goods | out; now I instruct you to find this man guilty, was adopted yesterday, it relieves it entirely of improperly imported being established the unless the testimony subsequently satisfies you any application to that class of cases; it merely presumption of guilt shall arise until the man that he is incocent. That is one reason why | makes it apply to cases where a proceeding is establish his innocence. I object to it.
instituted against the goods; what is knownMr. MORRILL. Establish it to whose But I wish to call the attention of my friend that is a technical term--as a seizure case, that satisfaction ?
from Maine to an amendment that has been is, where certain goods are libeled as having Mr. HENDERSON. Let there be uniform- | incorporated here since the bill came from the been unlawfully imported. ity; let the establishment of the fact go to the committee, which seems to me to be entirely It seems to me there is nothing wrong in our court, because then there will be uniformity. || foreign to the whole purpose of the section in saying that where the fact of illegal importaThe court will certainly always instruct the jury which it stands. I ask to have the amendment tion is proved, then if the party should excuse hypothetically, that if the jury are satisfied from as it now stands reported.
himself upon the ground of some accident or the evidence in the case that A imported the The Secretary read the amendment, which some inadvertence, the burden of proof should goods illegally and that B purchased the goods was to strike out the words and the guilty be upon him ; and as I understand, the effect from A, they will presume B to be guilty unless || knowledge of the defendant, when convicted of this amendment is to confine it merely to he shows that he innocently purchased them. of the fact, shall in all cases be presumed un that class of cases, to proceedings against the That would make a perfectly clear case. The less he or she prove the contrary;,' and to goods. To be sure in this section they do not court would instruct upon the fact and instruct insert in lieu thereof the following: "and the go on and provide anything in relation to the the jury of course hypothetically. This would burden of proof in cases of seizure shall lie mode of proceeding against the goods in order leave it to the jury to say whether the original upon the claimant where probable cause is to procure a forfeiture; but that is already fact upon which the presumption is to be based shown for such prosecution, to be judged of provided for by other laws, and, indeed, I do has been established or not. But I really can by the court before whom the prosecution is not know but by some other section in this not see the meaning of this proposition as it had."
bill. At any rate we have other statutes that stands, because the section in the first part of Mr. HOWE. The whole purpose of the apply to that class of cases, and this amendit requires that there shall
be guilty knowledge, section is to punish men for importing goods ment merely confines this rule of evidence, as and it devolves upon the Government to prove contrary to law, or buying them or selling | I understand it, to proceedings against goods, that fact; but in the latter part of it it is dis. them after they have been imported contrary and entirely takes away the effect of this clause tinctly stated that the burden of proof shall to law; and it declares that if a man imports in relation to the burden of proof in relation rest upon the defendant to show his innocence | goods in violation of law, that is without pay, to prosecutions against the person. where probable cause is shown for the prosecu ing the duties, the goods shall be forfeited and Mr. MORRILL. Which prosecution of the tion. Then this
probable cause is left to he shall be punished so and so; and the pur. || goods, the Senator will allow me to say, is not the discretion, left in the bosom of each and pose of the amendinent reported by the com contemplated by this section, and therefore it every judge, and there is no uniformity in the mittee was to regulate the proof on the trial is irrelevant, to say the least of it. practice.
of such an issue, but the amendment as it now Mr. POLAND. It leaves this section to I hope the amendment will not be adopted stands is that in case of seizure (which is a apply to seizure cases merely, proceedings in its present shape. I am perfectly willing to case not contemplated by the section,) the bur against the goods. Perhaps it may not extake that portion of the section proposed to be den of proof shall be on the claimant, who is actly be cognate to the section itself, and it struck out, for I think that covers all that could a new party, a party that cannot be present is perhaps unnecessary, because I think the be desired. I understand the design of the upon any trial contemplated by the section act of 1799, that was referred to yesterday, committee is to reach all guilty parties. Al. the burden of proof shall be upon the claimant establishes precisely the same rule in seizure thouglı we allow the presumption of guilty on such and such conditions which is entirely cases, and unless this bill repealed it there knowledge in a case of this sort, the defendant foreign, as it seems to me, to the whole purpose was no necessity for having this clause in. may show himself to be innocent, or may pro of the section. I think that it ought to be oor
Mr. MORRILL. That was the answer I was duce evidence tending to show his innocence, rected, if no more.
about to make to the Senator. My understandor at least bring it within a reasonable doubt; Mr. MORRILL. It seems to me that the Il ing of the bill is a little different from his. This
provision certainly is not necessary at all in the || proposed, and which we adopted yesterday, it
He explained to me how it was done, view the Senator from Vermont takes of it. seems to me relieves it of all difficulty, and it and I expect that he gave me a very accurate
Mr. POLAND. If you leave the act of 1799 is precisely proper that it should be passed in in force, it is not. the form in which we amended it.
I think we must go on the presumption that Mr. MORRILL. The case of a libel against Mr. JOHNSON. I have no doubt that the every man who comes into the possession of the property is already provided for by other honorable member from Vermont is right that goods that have been imported into the counacts. But the Senator will see that this section we have the power to make the law as the try is bound to know that they have been reg. by no possibility can apply to the property by | amendment suggested by his colleague would | ularly e::tered and the duties paid, and it is his the very use of the language, “the onus pro make it; but that is the law now in relation to business to know, if he is a regular trader. If bandi shall lie upon the defendant where prob- || seizures. The seventy-first section of the act a man goes to New York or Boston or any of able cause is shown for such prosecution." of 1799 says that in all cases of seizures of these eastern ports to buy goods, or if he purThat is, as to a prosecution against the person, | goods liable to forfeiture the burden of proof chases on the Canada borders, it is his duty to not a libel against property.
shall be cast upon the claimant. When this know that the goods have been entered at the Mr. POLAND." I understand the section section says that goods illegally imported shall custom-house and have paid the duties. If he now to read, as amended, and the burden of be forfeited, it brings the goods within the does not know it, and you make your law so proof in cases of seizure shall lie upon the operation of the act of 1799 ; and that provides that he is not bound to know it, you encourage claimant.''
precisely what would be provided for by the smuggling. I am willing to vote for this bill Mr. MORRILL. Yes, sir; but I am speak. || amendment suggested by his colleague, as I || because I think in all our laws on this subject ing of the intent of this section. It was to pro think the honorable member will adinit. we must assume that it is the duty of the individe a remedy against the person, and not I endeavored to distinguish the rules pre vidual who purchases goods upon which there against the property. We have a remedy against scribed by the section of the act of 1799, relied is duty levied to see that they have been reg. the property in the laws already provided for. upon yesterday, from the principle contained in | ularly entered and the duty paid; and a declaNow we propose to provide an additional rem the amendment of the committee, and I am ration in your law that he is presumed to know edy against the person, and the amendment of glad to find that the honorable member from that fact, and that he is guilty if he does not the Senator from Vermont, [Mr. EDMUNDS,] Vermont (Mr. POLAND] agrees that that dis know it is perfectly correct. You will never ignoring that part, makes a provision for a pro tinction was well taken, and I understood his enforce your revenue laws without such a princeeding against property. That amendment | colleague, who offered the amendment which | ciple, in my judgment, ought not to be accepted, first because it has is now before the Senate, to agree also in the Mr. HENDERSON. I understand that if no application to the bill and is not necessary, same view.
we concur in this amendment, in prosecutions and whether the Senate will accept this provis The fourth section has two objects. The in criminal cases the burden of proof will not ion or not is a question that is entirely inde first is to provide that the goods illegally im lie on the defendant; there will be no presumppendent of that; whether they will do it or not ported shall be forfeited. That is one of their tion against him. depends upon whether the Senate is disposed amendments, and the second is that the party Mr. MORRILL. That is so; that is the now to apply the same principle as to the bur who imports or the party who comes into effect of it. den of proof against a man who is charged with possession of the goods knowing them to have Mr. HENDERSON. Is it in order to amend violating the law that has been uniformly ap been illegally imported shall be personally the clause intended to be stricken out before plied against his property when you were pro liable to punishment if convicted.
the vote is taken on the other? ceeding in rem against it. That is all there is I have no doubt that the act of 1799 in the The PRESIDING OFFICER, (Mr. POMEROY about it.
provision referred to was clearly within the in the chair.) The Chair thinks that it is in Mr. POLAND. It is very true that this authority of Congress ; and of course we could order to amend the portion proposed to be section does not provide specifically for pro provide in the same way now; and that is all stricken out. ceedings by way of libel in what are termed that is done by the amendment suggested by Mr. HENDERSON. My idea is that the scizure cases, but it does provide for the for my friend from Vermont, [Mr. EDMUNDS.] But establishment of some fact as against the defeiture of goods. The subject is not entirely it seems to me that it is unnecessary, because fendant in a criminal prosecution onght to raise foreign to this section, as the Senator from the law will be precisely the same. If we pass a presumption of guilt against him. I think Maine says.
It provides that where goods the fourth section unchanged in the particular | recent possession of goods illegally imported are illegally imported the goods themselves in which it provides that the goods imported | ought to raise the presumption of guilt. shail be forfeited and the person illegally shall be liable to be forfeited, then we bring Mr. CLARK. That is a matter for the jury. importing them shall be liable to be punished the goods under the operation of the act of The PRESIDING OFFICER. The quesby fine and imprisonment. As the bill was 1799, which authorizes the Government to pro tion is on concurring in the amendment made drawn it intended to make this change in reia ceed by way of libel against the goods, and the as in Committee of the Whole. tion to the burden of proof apply to both classes act then provides that whoever comes in and Mr. MORRILL. I want the first question of cases, to proceedings against goods, what claims the goods as his own shall be compelled to come upon the amendment moved by the are known technically as seizure cases, and
to establish his case. That is reënacting the Senator from Vermont, [Mr. EDMUNDS,] which also to prosecutions against the person for act of 1799, and that is all, as I think.
was to the original amendment, applying it to illegally importing them or having them in Mr. GUTHRIE. There is a great necessity cases of seizure alone. possession after they were illegally imported for a rigid enactment to prevent the smuggling Mr. EDMUNDS. Mr. Presidentwith knowledge.
of imported goods into the country; and in Mr. McDOUGALL. Allow me to ask å There is nothing new in reference to this. the customs laws we have always provided for question. Why make a new law of evidence We had statutes before which forfeited goods | seizures, and under the internal revenue laws in maritime law? Is there any cause for it? that were illegally imported, and statutes pro goods are liable to seizure after they pass from Mr. EDMUNDS. There is no cause whatviding for proceedings of that character. We the hands of the manufacturer if the duties
It is the old rule. had also statutes before this that provided pen have not been paid. It is impossible to enforce Mr. McDOUGALL. Then why make the alties for smuggling. There is nothing new these laws without some such provision. provision here? in this unless it provides a higher penalty, a I have made up my mind to vote for this bill Mr. EDMUNDS. That is just what I am greater penalty than the law did before. As without question, without doing any injustice || about to explain. The amendment which I this last clause of the section stood originally, to my conscience. I take it for granted that offered in committee was agreed to. This and as the amendment that the committee pro every man who imports goods enters them at amendment of the Committee on Commerce posed to it stood until amended, it applied to the custom-house if he intends to do honestly, being under consideration in Committee of both classes of cases where goods were liable, and I take it for granted that every man who | the Whole yesterday, I proposed the amendand where a person who was prosecuted for purchases imported goods takes care that he ment which has been named. That amendbeing a smuggler, for illegally importing goods. deals with individuals who comply with the ment to the committee's amendment reportIn both classes of cases, upon the fact of illegal law. When I was Secretary of the Treasury I ing the bill was agreed to. Then the whole importation being proved, the burden of proof was hunting for the means to prevent smug amendment was agreed to in committee and was thrown on the individual.
It seems to me | gling on the Canada coast, and a gentleman | reported, so that the only question now possijust and right, so far as the proceeding against introduced to me an individual who he said ble before the Senate is on agreeing to the ihe goods is concerned, and perfectly com could give me all the information I desired | amendment reported by the Committee of the petent for us to say-violating no rule of law, on that subject, and sent him to me with a Whole, if I correctly understand parliamentary no constitutional provision, not invading this little note. I told him that the friend who law. particular right of trial by jury, and of having introduced him wished him to tell me all Mr. MORRILL. Now, allow me. The Senthem pass on all the facts of the case-“ If you he knew on the subject. “Well,” said he, ator from Wisconsin [Mr. Howe] took excepillegally import goods, and the fact of the "when I was engaged in smuggling there was tion to the amendment of the Senator from illegal importation be shown, the goods shall very little profit unless the duty was twenty Vermont alone, and stated that he desired to be forfeited unless you have some excuse that five per cent. We had to pay ten per cent. for try that question of the proposed amendment you are able to produce and show; we cast the running the goods across; it had to be done in of the Senator from Vermont applying the rule burden on you." But when you proceed against the night. Then we had to make an allowance to cases of seizure. That was the proposition. the man as a criminal, undertake to charge him of ten per cent to the merchants who pur Mr. EDMUNDS. If the Senator from Wiswith a crime, and subject him to fine and im. chased of us, or they would not buy of us, and consin undertook to make that reservation, it prisonment, then I think the principle that the we could not hide the goods when we got them was totally beyond his power and that of the committee undertook to establish here is all across; and if there was not five or ten per Senate regularly to grant it, because there was wrong; but the amendment that my colleague cent. left to us there was no profit in the busi. no such question pending.