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Amendment V



Document 21

The Thomas & Henry

1 Marshall's C.C. 367 C.C.D.Va. 1818

[Marshall, C.J.] The act under which this seizure was made, declares that "in actions, suits, or informations to be brought, where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall be upon such claimant." [See Story's Laws of U.S., vol. 1, ch. 128, § 71, p. 633.]

In this case, then, the United States are not required to establish guilt, but the claimants must prove innocence.

It is not the duty of the judge to justify the legislature, but surely, if, in any case, such a legislative provision be proper, it is in this. The fact is generally premeditated, and is perpetrated under all the precautions and in all the secrecy which ingenuity can suggest, and the means of proving innocence, at least, to a reasonable extent, which is all that can be required, are in possession of the accused. In such a case, he may, without a violation of principle, be required to prove his innocence.

In such a case, the absence of testimony, clearly in the power of the claimants, if not supplied by other equivalent testimony, must be fatal. It is impossible to smuggle so large a part of a cargo, as is charged to have been smuggled in this case, without the knowledge of the master and crew. Consequently, their testimony against the fact, if believed, would be nearly conclusive. Why is it not produced? The master, being himself liable to a fine under one of the charges in this libel, was perhaps not admissible as a witness; but to the crew, no objection existed. Why were they not examined? If they were unattainable, this fact ought to have been shown, and might have excused their non-production. The deposition of one of them only was offered, and his was taken so irregularly, as to be rejected. No attempt appears to have been made to take it again, or to take the depositions of other mariners.


The Founders' Constitution
Volume 5, Amendment V, Document 21
http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs21.html
The University of Chicago Press

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