burden of proof against goods is not pertinent. It should be against the person. So the question is simply whether it is the sense of the Senate that we ought to change the rule in the case of a prosecution against the person. On that I submit that there are two sides.

Now, I wish to say a single word on the merits of this question. It is true in my opinion, as my honorable friend from Maryland [Mr. JOHNSON] says, that we are simply in these cases of seizure reënacting what the law now is. I agree to what he states about that. We are also ten lines above reenacting what the law is as to the forfeiture of the goods. That is the law now in both cases. The difficulty we shall get into in the courts where those who are engaged in smuggling retain the astutest counsel they can find, will be this: if we reënact the law as to forfeiture and do not reenact the law as to the burden of proof, it will be immediately contended that we intended to drop it, that we have created a new code, that we have provided a fresh forfeiture, and have failed to provide for the old rule of evidence, and therefore that rule no longer applies; and half the judges of the country will decide so. It is, however, my opinion that the law is the other way; but at all events if we have the cause of forfeiture in we had better have the law of evidence in.

Mr. JOHNSON. It will do no harm.
Mr. EDMUNDS. Certainly not.

Mr. MORRILL. I will settle this question then. We are in the Senate now, and I move to strike out the amendment proposed in committee.

The PRESIDENT pro tempore. An amendment to the amendment is in order.

Mr. MORRILL. I maintain that the clause as it stands is obviously useless, for this reason: the section does not provide nor propose any remedy for goods forfeited; that is provided for by the act of 1799, which also provides the rule upon which the trial of the proceeding shall be had, and therefore it is not necessary in this bill. Now, the only reason for stating the rule of evidence in this bill is because, contrary to all the other acts, we propose to pro ceed against the person by a prosecution, and in proceeding against the person by a prosecution we say the burden of proof shall be on him in certain conditions. Now, it would be perfectly incongruous to say that in a proceeding, which is the only one provided for by this bill, against the person, cases of seizure shall be proceeded with in a certain way; that is, in a proceeding, the only one provided, which is against the person, you are to make your evidence apply to cases of seizure. That raises the question, and it is the only question raised.

Mr. EDMUNDS. I should like to inquire, in this precise connection, what was the purpose of the Committee on Commerce in introducing into this section the amendment in the eighth line reenacting the law as to the forfeiture of goods. Why did the committee amend by inserting that clause? It is the law already.

Mr. MORRILL. No, I do not say it is the law already; but I say if you proceed against the goods as for forfeiture the remedy is that provided for by the act of 1799.

Mr. EDMUNDS. Yes; but what is the object of introducing into the section this fresh clause relative to the forfeiture of the goods? Mr. MORRILL. Because the forfeiture of the goods depends on the manner in which they shall be introduced into the country.

Mr. EDMUNDS. It always has, has it not? Mr. MORRILL. No, sir; not as provided for in this section.

Mr. HENDERSON. This permits a seizure in such cases as were not provided for before. Mr. MORRILL. That is what I say. It adds additional circumstances under which goods shall be forfeited.

Mr. EDMUNDS. If that be true, then most certainly there is a new forfeiture here, not already provided for, and we must in that case apply the new onus probandi or we shall lose it. Mr. MORRILL. That does not follow by any means. All I mean to say, and all that it is necessary to say for this argument, is that there is no provision in this section for a procedure against the goods; there is no provision in this bill to proceed against the goods; and therefore the idea of providing for the 39TH CONG. 1ST SESS.--No. 163.

Mr. EDMUNDS. One word more. My friend from Maine says that there is no provision in this section for a proceeding against goods, and therefore there is no occasion for a provision regulating the rule of evidence in such cases; but there ought to be a provision regulating the rule of evidence in a proceeding against the person, because such a proceeding is here contemplated. Now, I undertake to declare, without the fear of successful contradiction, that there is exactly the same provision for a proceeding against goods forfeited in this section as there is against the person who || has incurred the penalty-exactly as much and no more. But it appears to me to be perfectly plain that there is no provision for a proceeding, in the proper sense of the term, against either. The section is merely penal. As applied to goods, the necessary penalty must be forfeiture, because that is the only way you can punish the thing. As to the person, it is fine. The section, therefore, declares that goods brought in under the prohibited circumstances shall be forfeited, and that the person who brings them in shall suffer a fine. That is all. It does not organize the court which is to condemn the goods; it does not organize any admiralty or maritime or seizure court, and provide for libels and answers and claims and proofs and decrees. It does not organize any common-law court, with a jury, to hear, try, and determine an indictment against the defendant for a violation of this law; but it simply, as applied to each class of the objects, provides for imposing a penalty. The penalty against goods is forfeiture necessarily; the penalty against the person is fine. Now, then, as applied to goods, the committee thought it necessary to introduce an amendment to the original bill which declares a forfeiture of goods; and they have thought it necessary to introduce as against the person a clause which provides for a penalty. Then they thought it necessary as to both classes of cases, because, as the amendment originally stood, it applied to both, that the onus probandi should be upon the defendant where probable cause was shown. I thought it wise, upon the argument of my friend from Maryland, who demonstrated, as it appears to me, the propriety of such a rule in an ordinary criminal cause, to limit the application of that rule to those cases which were analogous to the old limitation as applied to that description of proceeding. That amendment has been agreed to, and I hope it will not be stricken out.

Mr. CONNESS. I desire to ask the honorable Senator from Maine, who has reported this bill and prepared this section particularly, if it has been found that without this section, which proposes a penalty as against the person and proposes to put the burden of proof upon the person charged with the offense, the existing law is insufficient. Is the reason for preparing and introducing this section that it has been found that the existing laws providing for a penalty against the person are insufficient?

Mr. MORRILL. In the judgment of the Treasury Department, that was so. The bill was framed at the Treasury Department as originally expressed.

Mr. CONNESS. I would sooner take the opinion of some of the gentlemen of the Senate who are practitioners of the law, members of the bar, than the opinion of the Treasury Department on such a point. I think I can throw some light on this case.

Mr. MORRILL. I thought the honorable Senator asked as to the fact, not as to the law. Mr. CONNESS. I desire to be understood, because I think I understand something about the difficulty that lies behind this section. My question was, did those who prepared this section prepare the provisions that are made here as against the person who commits the offense

Mr. CONNESS. So they are of opinion, then, at the Treasury Department that guilty persons mostly have escaped.

Mr. MORRILL. That was the opinion. Mr. CONNESS. To that point I desire to call the attention of the Senate. The existing revenue laws provide for giving one half, believe, of the amount of the value of seized goods to the customs officers-to the collector, to the naval officer, and to the surveyor of the port.

My experience is (and I have had a little light upon what I am going to say) that the customs officers of the United States have but in rare instances ever instituted prosecutions against persons, when they could seize the goods, and then the persons would fail to claim them, would abandon them, and thus allow a division of the goods that would be profitable to the officers. I can state in reference to the port of San Francisco alone, that in proportion. to the amount of business done, which is very great, as many attempts have been made at smuggling or fraudulent importation as, perhaps, at any other port in the Union; and the cases are few and far between (perhaps there never have been half a dozen all told) where prosecutions have been instituted and carried out against the persons engaged in perpetrating the crime. On the contrary, my opinion isand I have filed at the Treasury Department before this time, official evidence going to show upon the sworn affidavits of subaltern officers of the customs at that port, that again and again information was presented to the collectors, naval officers, and surveyors that fraudulent importations were being made, that the laws were being violated, and the criminals pointed out, but those officers in place of causing arrests to be made and stopping the crime there, refused to do anything of the kind, but bided their time until such a period as they could seize the largest amount of goods, and then upon an abandonment of the goods by the parties who perpetrated the crime, where there could be a division of the goods with them, they abandoned the prosecution and the prosecution was never pressed.

Now, I undertake to say-I cannot speak with certainty, for I am not sufficiently acquainted with the law-that it will be found upon an investigation that the existing laws, without this portion of the act before us, are sufficient already for the punishment of persons engaged in infracting and violating the law; and that the better remedy to compel that to be done would be to take away this immense incentive that exists under the present law in the profits which are given to customs officers by the seizure and confiscation of goods. I have heretofore suggested to the Treasury Department that the law be changed in that respect, and one of the Secretaries, I believe, was in favor of it; indeed, he told me on one occasion that he would recommend such a change as would give a reasonable per centage to the officer, and make it not so much his duty to compromise with crime and get the goods as it was under the existing law. If really the difficulty is in what I point out, if the reason why persons have not been prosecuted and convicted is that this great incentive exists, the incentive should be removed and the law allowed to remain as it is in this respect and officers compelled to do their duty under the law.

I apprehend that the Treasury Department are entirely in the fog, entirely in error in this respect. They have arrived at their conclusions by the Commissioner of Customs, and other officers in that Department. They saw that there were a great many seizures and but few criminal prosecutions; and the disparity between the fraudulent importations and the consequent seizures and the number of prosecutions, led them to the erroneous conclusion

that some additional statutory enactments were necessary to prevent that condition of things.

I have no doubt, from the knowledge I have of these affairs that has come to me now for a series of years, that what I state is really the condition of the case, that the law is sufficient already for the punishment of the crime; but that as long as the reward is so great for compromising crime you cannot punish any person. Now, the question is whether you shall make your laws unnecessarily vindictive and throw the burden of proof, in the trial of a person, upon him, when under the law, as it exists, no sufficient effort has ever been made to convict.

amended; but if I understand the amendment of the Senator from Missouri, it does not differ materially from the amendment proposed by the committee.

Mr. MORRILL. I move to amend the amendment by striking out the words "in cases of seizure" from the words which the amendment proposes to insert.

The amendment to the amendment was agreed to; there being, on a division—ayes 18, noes 9.

Mr. EDMUNDS. I now move to strike out the whole.

Mr. FESSENDEN. That is the very question now.

Mr. EDMUNDS. If it is proper to amend the amendment reported by the Committee of the Whole, in one respect it is in all. Now, I move to amend the pending amendment by striking; out the words" and the guilty knowledge of the defendant, when convicted of the fact, shall be presumed unless he or she shall prove the contrary;" and also the provision that the burden of proof shall lie upon the defendant where probable cause is shown.

Mr. FESSENDEN. I suggest to the Senator that he will meet it more simply by just taking the vote on concurrence with the amendment made in Committee of the Whole. If that be rejected, if we do not concur, then he can move to strike out the words which may remain.

Mr. EDMUNDS. If that is the whole of the proposition it is the same question.

Mr. FESSENDEN. If we reject the amendment a motion can be made to strike out the original words, and in that way he can put

all out.

Mr. EDMUNDS. If I correctly understand the present question it is on agreeing to the amendments reported by the Committee of the Whole, and one of those amendments reported by the Committee of the Whole has just been amended by striking therefrom the words which the Senator from Maine [Mr. MORRILL] proposed to strike out. Now, having agreed to that, the amendment reported by the committee or what remains of it meets my disapproval decidedly. I entirely agree with the Senator from Maryland that it ought not to be adopted as it now stands. If that is the whole of the amendment we can take the question just as well upon agreeing or disagreeing to the amendment. Is that the whole of the amendment now pending?

The PRESIDING OFFICER. The Chair understands it to be the whole of the amendment.

Mr. EDMUNDS. Then I ask for the yeas and nays on the adoption of the amendment. Mr. HENDERSON. Is it in order to amend that portion by moving to strike out the same matter and insert other matter?

The PRESIDING OFFICER. The Senator will state his amendment.

Mr. HENDERSON. I desire to strike out the whole of the matter in this section after the word "and," in line thirteen, and to insert:

In all cases where it is proved that any person has imported or brought into the United States, or assisted in so doing, any goods, wares, or merchandise contrary to law, and in cases where any person shall receive, conceal, buy, or sell any such goods, wares, or merchandise contrary to law, it shall be presumed that such person had guilty knowledge of such violation of law, and the burden of showing the contrary shall be upon the party so offending.

Mr. MORRILL. I do not suppose it is in order to move that at this time. The question, I think, must be on concurrence in the amendment made as in Committee of the Whole, as

The amendment was non-concurred in. Mr. McDOUGALL. I ask the permission Mr. HENDERSON. The difference is this: of the Senate to call up, with a view to its readmy amendment declares that upon the estab-ing, the veto message received some time since lishment of a fact a presumption shall arise; from the Executive. whereas as it now stands it leaves to the court at any stage of the proceedings to declare that the defendant is guilty and that it devolves on him to show his innocence. My amendment establishes a rule, instead of leaving it entirely in the breast of the court.

Mr. CHANDLER. Let us finish this bill first. We can dispose of it in five minutes.

Mr. McDOUGALL. I only desire to have the message read, which should be done at once out of respect to the Executive, and then it can be ordered to be printed and go over until to

Mr. MORRILL. I understand it to be substantially this, that provided the Government shall establish the fact of the illegal importation or the fact that aid and assistance were given to facilitate the transportation, then upon the proof of those facts the inference of guilt shall follow.

The PRESIDING OFFICER. The Chair thinks the amendment of the Senator from Missouri is not in order at this time, as it proposes to strike out that which has been partly concurred in and partly not concurred in, and the very question is whether the Senate will concur in that portion.

Mr. HENDERSON, I withdraw it for the present.

The PRESIDING OFFICER. The question is, Will the Senate concur in the amendment made as in Committee of the Whole, as amended?

Mr. HOWE called for the yeas and nays, and they were ordered; and being taken, resulted-yeas 25, nays 15; as follows:

YEAS-Messrs. Chandler, Cragin, Creswell, Fessenden, Foster, Grimes, Guthrie, Howard, Kirkwood, Lane of Kansas, Morgan, Morrill, Nye, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Van Winkle, Wade, Willey, Williams, Wilson, and Yates-25.

I hope it will be stricken ont. I did not so understand it at first.

That it shall be the duty of the several collectors of customs to report, within ten days after the facts shall come to their knowledge, to the district attorney of the district in which any fine, or personal penalty may be incurred for the violation of any law of the United States relating to the revenue, a statement of all the facts and circumstances, &c.

Mr. EDMUNDS. As the law now stands, if I correctly understand it, it is the duty of the collector of customs or other customs officer making a seizure to report that seizure to the district attorney within ten days after the seizure in order that proceedings may be instituted against the property, when the claimant may, by giving bail or other security, receive his property from the officer, and a trial may be had. This amendment proposes to change that law, and to only make it the duty of the collector to report to the district attorney after the facts come to his knowledge. That means all the facts, I take it; and he may therefore postpone making a report to the district attorney as long as in his discretion it may seem to be desirable. The consequence will be that the district attorney cannot take any proceedings against the property until he gets this report, and the claimant cannot take any proceedings or steps whatever to recover the possession of the property until that is done. In my judgment, it is giving too large a discretion to the collector of customs to effect a purpose of that description. I hope, therefore, that this amendment will not be concurred in, in order that it may be made the duty of the collector or the informing officer to report to the district attorney within a definite time after the seizure,

as the law is now.

Mr. MORRILL. I am satisfied that the Senator is right, and that the amendment is obnoxious to the difficulties he suggests, and

morrow.

Mr. MORRILL. Let us dispose of this bill before taking that up. We shall be through in a very short time.

Mr. McDOUGALL. Very well.

The next excepted amendment was to strike out the nineteenth section of the bill in the following words:

SEC. 19. And be it further enacted, That nothing in this act contained shall be taken to abridge or limit any forfeiture, penalty, fine, liability, or remedy provided for or existing under any law now in force.

Mr. MORRILL. That section, I am inclined to think, on further reflection, ought to remain. It was stricken out after the bill was sent to the committee, and the committee gave their assent to striking it out; but since action was taken on striking it out yesterday, I have been to the Treasury Department, and I am afraid that if that section is stricken out certain rights of the Government in forfeitures and penalties which have been provided for in former acts will be impaired. No harm can arise from its being in the bill, and it is safest, on the whole, I think, to allow the section to stand. I therefore hope that the Senate will not concur in the amendment striking out that section.

Mr. EDMUNDS. I agree with my friend from Maine that the section ought not to be stricken out, but I suggest to him whether it would not be well to add "except as herein otherwise specially provided," so as to guard against any double forfeitures or double penalties.

That can be done after

Mr. FESSENDEN. ward. Let us non-concur first in the amendment to strike out the section, and then the Senator can amend it.

The amendment was non-concurred in.

Mr. EDMUNDS. I now move to amend this nineteenth section by adding the words, "except as herein otherwise specially provided. The amendment was agreed to.

11

The next excepted amendment was in section thirty-three, line seventeen, after the word "when" to insert the word "any;" and also to strike out the letter "s" in the word "officers;" in line nineteen to strike out the word "make" and insert "furnish information to he collector leading to a" in line twenty to strike out the final "s" in the word "seizures;" and also to strike out the word "they" and insert the word "he;" and in line twenty-one after the word "distribution" to insert the words with such collector, naval officer, or surveyor;" so that the proviso will read:

(6

Provided, That when any officer of the customs, other than the collector, naval officer, or surveyor, shall furnish information to the collector leading to a seizure he shall be entitled to an equal share of the distribution with such collector, naval officer, or

surveyor.

Mr. MORRILL. I desire to make a single statement about that provision and the effect of it. As the law now is, one half the money arising from seizures is distributed among the collector, surveyor, and naval officer. Mr. JOHNSON. Equally?

cers.

Mr. MORRILL. Yes, sir; one half of the whole seizure is distributed among those offiAs it has been amended, this proviso is that the one half shall be divided between the collector, naval officer, or surveyor, and any other officer of the customs furnishing the information leading to the seizure, and that would include appraisers, measurers, &c., which is said to be against the policy of the law. On

must have the power to stop the train for the purpose of inspection. That is about the substance of it.

Mr. FESSENDEN. I know that; but if the train is to be forfeited then, of course, they take possession of the train.

and will receive no such construction, I do not care to press it.

The PRESIDING OFFICER. The Senator from Wisconsin withdraws his amendment. Mr. HOWE. I will suggest another amendment, in section three, line thirty-nine, to strike out the word "appoint," and insert the words "for the employment of;" so that the clause will read:

Mr. EDMUNDS. I propose to provide for that in the amendment which I have offered. Mr. MORRILL. I should like to have the amendment read at the desk.

The Secretary read it.

Mr. MORRILL. The difficulty that occurs to me is about establishing the ownership. The language of the amendment is "the owner or agent of the owner." Ought it not to be so broad as to include any of the agents of the company, the conductor or any officer?

Mr. HENDRICKS. I do not think a train ought to be forfeited for the act of the conductor.

Mr. EDMUNDS. That part of the amendment provides that if the responsible party, the manager in charge of the train, has the guilty knowledge, then the train or car is subject to forfeiture; but if the responsible manager, or the conductor, is not guilty of any impropriety, then I think it would be too hard, if the enginedriver, or stoker, or brakesman should happen to be smuggling in a small keg of brandy, that the owner should be subjected to the forfeiture of the train for that reason. I think that is going too far.

Mr. CHANDLER.

Then say the agent of

the company.

Mr. EDMUNDS. I have said the owner, and that must be the company or the private person who owns the car or engine. Many of the northern roads are not owned by companies, but by private persons, who are trustees. Hence the term "owner, or agent of the owner in charge," it appears to me, covers both classes of controlling parties, the proprietor or the agent of the proprietor who has control of the train. If any language can be found to express the idea better, I shall certainly be very glad to accept it.

Mr. MORRILL. I do not know but that that answers the purpose; but it seems to me it will not be possible to bring a guilty knowledge of the fact to the owner.

Mr. EDMUNDS. It is in the alternative. Mr. CHANDLER. Say "owner or agent." Mr. EDMUNDS. That is exactly the language of my amendment.

Mr. FESSENDEN. Had you not better put in the word "superintendent?" All these companies have superintendents.

Mr. EDMUNDS. Very well; I have no objection to inserting the word "superintendent" after the word "owner," or in place of it, as may be most agreeable.

EXECUTIVE SESSION.

Mr. FESSENDEN. I new move that the Senate proceed to the consideration of execu tive business.

Mr. MCDOUGALL. I have twice before asked, and now again ask. for the reading of the veto message of the President. I merely desire to have it read and printed. I want to see what it is. I am not informed. It is a matter of importance, and it should be read. That is all I desire.

Mr. STEWART. Take an order to print without reading it.

Mr. MCDOUGALL. No; it should be read and printed.

Mr. FESSENDEN. I insist on my motion. Mr. McDOUGALL. This can be done in five minutes.

call for the yeas and nays. I want to see whether

Mr. SUMNER. Order!

Mr. MCDOUGALL. Mr. President, I address you, and I have the floor. When a message comes to this body from the President of the United States, without regard to the individual, but out of regard to his high office, it is, as a matter of courtesy, the duty of the Senate on the first opportunity to hear what he may have to say why he did not indorse the proceedings of the two Houses of Congress. That is a courtesy that has always been observed, and never unobserved, I think, until this day; at least, this will be the first time when it has been refused.

Mr. FESSENDEN. I will simply say in answer to that

Mr. MCDOUGALL. I am speaking to the question, sir. It is in the course and order of proceeding that a message of the President of the United States should be read to the House to which he sends the message on the first opportunity, not interfering with the pending business; and that would be the pending business of the moment. It should have been read some hours since. It has not been read as yet. I do not know what it is. I want to see what advice is contained in the counsel he States and to other Senators of the United may convey to me as a Senator of the United States; for under the system of Government under which we live, when the tribune of the people says, "I forbid" for "I have cause; I think you are in error; I think passion may have been uppermost and reason may have been overthrown;" we should receive his message with all the consideration which belongs to a high body of which he is an equivalent, not a superior. It has come here, and has been on our desk, now, for hours. There is, it seems to me, a perverse, adverse spirit not disposed to extend to his statement of his objections the courtesy that always has been extended to men who occupied his high place in years gone by. We are not happy in wandering from our former paths. We are wandering, and wandering into the wilderness. How soon we may get lost, none but Him alone knoweth. I say it is our bounden duty to hear that message read now, and have it printed for the advice and printed; and that is the motion which I of the Senate. I ask that it may now be read made some time ago, when I had the floor, but waived it. It is my right to move it now, and I make that motion that the message be read and printed.

The PRESIDING OFFICER. The question is on the motion of the Senator from Maine.

Mr. McDOUGALL. On that question, I

Mr. FESSENDEN. The question now is simply on the call for the yeas and nays, as I understand it, on the motion to go into executive session.

The PRESIDING OFFICER. On the motion to go into executive session the Senator from California asks for the yeas and nays.

Mr. FESSENDEN. That is the motion before the Senate, and the only one that can be in order. They have not yet been ordered. Mr. MCDOUGALL. Very well; I trust they will not be ordered until this thing be done.

Mr. FESSENDEN. I wish simply to say that if by any possibility the motion I have made could be construed into any disrespect of the Chief Magistrate, that at this late hour we let his message go over until the morning before having it read, in order that we may have a full Senate, I certainly would withdraw it for that purpose; but as I have no such intention, and as the idea of disrespect to the President is entirely imaginary. I shall insist on my motion and let the yeas and nays be taken upon it if Senators call for them. That

is the motion before the Senate.

Mr. McDOUGALL. I do not charge the Senator from Maine

The PRESIDING OFFICER. It is the duty of the Chair to suggest that on the question of 'going into executive session extended debate is not allowed in the Senate.

Mr. McDOUGALL. I shall not go beyond the question of going into executive session. The PRESIDING OFFICER. Upon that