Joseph Story

“ The probable cause intended by the act has no reference to the seizure, but to the trial. There must be probable cause for the prosecution, not for the seizure, and the court is to judge of it by what appears to the court-by what comes to the knowledge of the court on the trial of the prosecution.
9. That the United States have shown probable cause for the prosecution, and that the onus probandi was thrown upon the claimants. ”

“ F, which had been imported into New York, in the ship Eutaw, being the same on which Francis Blackburne was alleged to have paid the freight, were still in the custom-house at New York. We think that this evidence was properly admissible, for the same reasons as those which have been already stated. It was a part of the res gestae. If the other parts of the evidence were favorable to the innocence of the claimants in their various importations, then no conclusion against them could fairly be drawn from this fact. ”

“ The defendants produced and examined John Robinson, of the firm of Okie & Robinson, and Robert Walker, to prove an alleged usage of trade, in England, to make a discount or allowance of five per cent. for measure on cloths and cassimeres; said Robert Walker being cross-examined, several invoices of his own importations into the port of New York were shown to and verified by him: and the said invoices were placed by plaintiffs' counsel in the hands of the counsel of the defendants, and one of said invoices was read by the counsel of the United States to the jury. ”

“ That the duties on the goods were not paid within the meaning of the 68th section of the act of 1799, (although they had been passed at the custom-house of New York, and the duties there assessed upon them had been paid, according to the value and prices in the invoice,) if the jury should be of opinion that they were not invoiced at their fair and true cost and value. ”

“ In our judgment the circumstances were abundantly sufficient to justify him, nay, to require him to throw the onus probandi on the claimants. The extraordinary circumstances connected with the concealment of the goods, the prevarications and false statements of Blackburne, and the undervaluation of the goods, all required the most plenary proofs on the part of the claimants, to deliver the property from the perils by which it was surrounded. The original cost of the purchases could have been fully proved by the claimants, if the transactions were bona fide purchases ”

“ Laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not, in the strict sense, penal acts, although they may inflict a penalty for violating them.' And he added, 'It is in this light I view the revenue laws, and I would construe them so as most effectually to accomplish the intention of the legislature in passing them.' [1] The same distinction will be found recognized in the elementary writers, as, for example, in Blackstone's Commentaries, (1 Black. Comm., 88;) ”

“ The witnesses were acting as the agents of the government in making the search and seizure; they alone could give testimony as to the facts attending such search and seizure, and were, therefore, witnesses from necessity; and their acts being adopted or authorized by the government, public policy requires that the government should have the means of enforcing its own rights through the instrumentality of their testimony. Their competency for such purposes falls directly within the reasoning of the Court of King's Bench in the case of The King v. ”

“ There are many exceptions to the rule on this subject, founded upon necessity, or public policy, or the remoteness, the uncertainty, or the contingent nature of the liability. The present case falls directly within these exceptions. ”