Page:Harvard Law Review Volume 4.djvu/65

THE BURDEN OF PROOF. 49 far more common than either of the others, in which the term may mean both or either of the first two. The last is very common ; the first or second, that is to say, any meaning which makes a clear discrimination, is much less usual. II. It will be convenient at this point to illustrate the different uses of the term by some citations. (i.) The use of it in ordinary, untechnical speech, as indicating the effect of a natural probability or presumption, of the pres- sure of evidence or argument previously introduced, and of what is called a mere "preoccupation of the ground," may be seen in a passage from Bishop Whately's ** Elements of Rhetoric : " ^ " It is a point of great importance ... to point out ... on which side the presumption lies, and to which belongs the {onus pro bandi) burden of proof. . . . According to the most correct use of the term, a * presumption ' in favor of any supposition means . . . in short that the burden of proof lies on the side of him who would dispute it." Of the same use of it in our law books, the following are in- stances : (a.) "The burden of proof is shifted by those presump- tions of law which are rebuttable ; by presumptions of fact of the stronger kind ; and by every species of evidence strong enough to establish 3. prima facie case against a party." (Best, Evidence, s. 273.) And again : "As . . . the question of the burden of proof may present itself at any moment during a trial, the test ought in strict accuracy to be expressed thus, viz.: 'Which party would be successful if no evidence at all, or no more evidence, as the case may be, were given.' " (b.) A very clear expres- sion of this sense of the term is found in Lord Justice Bowen's opinion in Abrath v. No. East. Ry. Co.^ " In order to make my opinion clear, I should like to say shortly how I understand the term 'burden of proof.' In every lawsuit somebody must go on with it ; the plaintiff is the first to begin, and if he does nothing he fails. If he makes a prima facie case, and nothing is done by the other side to answer it, the defendant fails. The test, therefore, as to burden of proof is simply to consider which party would be successful if no evidence at all was given, or if no more evidence was given than is given at this particular ^ Part I. c. 3, s. 2. '^ 32 W. R. 50, 53. In the regular report (i i Q. B. D. 440, 455-6) the phraseology is slightly, but not materially, different.