Mr. HOWE. If you look at the words it would be the burden of proving the complaint. If the judge should say that the district attor ney had probable cause for commencing the prosecution, when he gets so far that he can say that then he must say “now the burden of proof is upon the defendant to establish the complaint to maintain the indictment.” I think that is the literal meaning of the amendment; but it probabl is not the meaning which the committee intened to give it. But, in the most favorable view you can take of it, it is dividing a single issue into 2 propositions and submitting one of them to the court and reserving the other to the jury. The court is to say, when so much of the case has been proved as that, if not explained or not controverted by the defendant, the jury must find a verdict of guilty. That much of the issue is left to the court, and the rest of it is reserved for the jury. The court says when the primafacic case is made out. The jury is left to say when the primafacie case is rebutted. The fact of possession is a circumstance always proper to be submitted to the tribunal toestablish the guilt, whether of importing or buying with knowledge that the goods were imported contrary to law; it is a circumstance going to show guilt; it is proper to be submit ted to the jury; but it is proper for the jury to say what weight should be given to that circumstance as to every other circumstance. If that is the only circumstance which is proved in the case, the court cannot help but say that there was probable cause for a prosecution but when the court says that, rings his bell, and says “here is probable cause for the prosecution, ” then he sa sin effect to the jury “now you must from this time forward in the trial of the cause hold this man guilty until he, taking the burden of proof upon himself, satisfies on by his own evidence, by his own etiorts, by what he shall marshal before you in the nature of proof, that he did not know anything about;it until he shows this active you must assume the affirmative, ” the agarmative being that he did know. That rests upon the allegation of the indictment. Any circumstance, therefore, which shall induce the court to say that the district attor ney was not to blame for commencing the prosecution, that he had probable cause for commencin g the prosecution, any circumstance that enables the court to say that the district attor ney is not guilty, calls upon the defendant in fact to prove that he is not guilty. I think this is a very great advance upon any rule of evidence that I ever heard of in the trial of crim inal causes. The Senfrom Massachusetts says we may be justified in adopting more stringent rules in ese cases. Itink smug sling is a very bad thing and ough! to be put own; but I do not know that smuggling is a greater crime than burglary, or than murder, or than treason. This is a rule of evidence, I take it, we should not tolerate in the trial of either of those crimes, and I do not know why we should tolerate it in trying the crime of smuggling).