Posted by KatNip on September 21, 1998 at 03:27:45:
What is Probable Cause?
Sumner: “[. . . ] Then we come to the next question here: under what circumstances shall the onus probandi be upon the defendant? It is where probable cause is shown for such prosecution. I presume that I do not err when I say that it is not a phrase of the common law. Probable cause is not strictly a phrase of the common law. It is a phrase of the ancient Roman jurisprudence, and derived from the ancient Roman jurisprudence.”
Johnson: “From the prize law and the admiralty law.”
Sumner: “Is not the admiralty law derived from the Roman jurisprudence?”
Sumner: “It is a phrase of the ancient Roman jurisprudence, derived from that, entering into the jurisprudence of all continental Europe, and all that portion of our own jurisprudence which is dependent upon the ancient Roman jurisprudence, the admiralty law, as Senator from Maryland suggests, and also in England the law administered in consistorial courts. Now, in the Roman (Civil) law, to go back to that, we find that the term probable cause plays an immense part. There is not a term in Roman jurisprudence, I presume, more important than that. Where a party could show ‘probable cause’ for anything that he did it was a justification.” [. . .] “If the seizure be a ship, or if it be a man, or if it be any article of property, there is no mistake if the Government shows probable cause; and so, on the other hand, if there is probable cause to believe a man guilty, the burden of evidence under that jurisprudence absolutely changes and he has got to bring forward his evidence in order to overthrow that probable cause.”
Edmunds: [. . .]
Johnson: [. . .] “The honorable member from Massachusetts said very properly that the term ‘probable cause’ is not so familiar to common-law lawyers as to those familiar with the Roman law. He seemed to suppose that that phrase was not known to the common law. In that I think he is mistaken. Those words are in our statutes; they are familiar in cases of prize and in all cases of admiralty.”
Sumner: “Under the Roman law.”
Johnson: [. . .] “In a civil case, if the judge thinks, upon the evidence, that the case as it stands in point of law casts upon the defendant the burden of proving his defense, or that it stands in such a situation that it cast on the plaintiff the burden, changes the onus, he tells the jury so; but that is a question of law which may be carried up to the courts above, and his mistake corrected if he happens to make a mistake. [. . .]”
Edmunds: [. . .] “Now, what is ‘probable cause?’ It is very difficult to define the distinction between the meaning of the term ‘probable cause’ and the meaning of the term ‘prima facie evidence.’ It would puzzle anybody except a Philadelphia lawyer to make any sensible and satifactory distinction between the two terms.” [. . .] The Congressional Globe, May 14, 1866, pp. 2565, 2566.
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