BURDEN OF PROOF (Part 3)

By Alexander Carson

 

     The author next gives an example from possession as to property.  “Thus again," says he, "there is a presumption in favor of the right of any individuals or bodies corporate to the property of which they are in actual possession.  This does not mean that they are, or are not, likely to be the rightful owners; but merely that no man is to be disturbed in his possessions till some claim against him shall be established.”

     On this I observe, first, it is true that the burden of proof lies on him who disputes the right of the present possessor, but it is not true that this is called a “presumption in his favor.”  It is true, also, generally speaking, that there is a presumption in favor of the possessor; but the sense in which this assertion will be generally admitted, is not the sense in which it is defined by the writer, but the sense that he disclaims.  It will universally be understood to mean some degree of probability that the possessor is the rightful owner of the property.  It is never employed to designate merely that the burden of proof lies on the side of him who disputes the right of the possessor.

     Second, the principle on which the law proving possession as to property must undoubtedly be founded on an opinion of previous probability, otherwise it would be most unjust and absurd.

     Third, there is actually an antecedent probability on the side of possession as to property.  There are a million of cases against one, in which the possessor is the legal owner.  The law, then, is founded on self-evident truth.  There is the soundest reason directing the procedure of the law in this instance.

     Fourth, to put the proof on the possessor would unhinge property, and be most evidently unjust.  Many rightful possessors might not be able to give any other evidence of their right than possession.  But with respect to religious doctrines and institutions, there is no antecedent probability that those in existence at any time are actually in Scripture.  The vast majority of religious rites used under the Christian name are the mere invention of men; and not a single institution of the Lord Jesus, as it is recorded in the New Testament, has been left unchanged; and it is no injustice to put each of them to the proof, because, if they are in Scripture, proof is at all times accessible.  There is no similarity between religious ordinances and property.  As to a man's right to retain his faith and practice, it not only continues till his doctrine and rights are disproved by Scripture, but equally after this as before it.  He is to be left in the undisturbed possession of his religion after the clearest demonstration of its falsehood and its absurdity.

Fifth, the civil law actually establishes the procedure as to possession in property: the Scriptures nowhere recognize the claims of posses­sion as to doctrines or institutions.

     His Grace, after some very just and appropriate observations on the importance of deciding on which side lies the burden of proof, and having illustrated them with suitable examples, speaks of him who neglects it as leaving out “one, perhaps, of his strongest arguments.”  Now how does this consist with the assertion, that the presumption referred to implies not a previous probability?  Can anything be an argument, which has not evidence?  If there is no evidence in this presumption, what gives it so much weight?

     “The following,” says the author, “are a few of the cases in which it is important, though very easy, to point out where the presumption lies.

     “There is a presumption in favor of any existing institution.  Many of these (we will suppose the majority) may be susceptible of alteration for the better; but still the ‘burden of proof' lies with him who proposes an alteration; simply on the ground that, since a change is not a good in itself, he who demands a change should show cause for it.”

     With respect to civil institutions, there is, in the common sense of the term, a presumption that they were agreeable to the wisdom of the 1egislature when they were enacted.  There can be no reason to alter them, except they can be improved.  But even with respect to a civil law, the moment that the legislature consents to bring it into discussion, it must prove its utility or perish: proof of this lies on its friends.  It is self-evident that the advocates of a law must show the arguments that support it.  If these are refuted, it perishes without further assault.  If it is a useless law, why should it be law?

    But with respect to existing religious institutions, there is no presumption in their favor, in any sense of the term.  Their present existence is a presumption that they were agreeable to the wisdom of the institutor, but not that they are of Divine origin.  He who holds them must prove them.  He who assails them has only to refute what is alleged from Scripture in their support.  The question is not whether the institution is uselfu1 or injurious, but whether it is founded in Scripture.  Had an institution existed from the time of Noah, it has not the smallest authority from its age.  It must prove its origin to be from God.  “To the law and to the testimony: if they speak not according to this word, it is because there is not light in them.”

     “Every book again, as well as person,” says the author, “ought to be presumed harmless (and, consequently, the copyright protected by our courts,) till something is proved against it.  It is a hardship to require a man to prove either of his book or of his private life, that there is no ground for any accusation; or else to be denied the protection of his country.  The burden of proof in each case lies fairly on the accuser.”

     The burden of proof, in the cases referred to, certainly rests justly, as His Grace determines; but not from a pre-occupation of the ground, but from self-evident truth.  Nothing could be more self-evidently unjust than to oblige a man to prove his own innocence.  He might be innocent, yet quite unable to prove it.  What other proof could he justly be called on to give of his innocence of a crime, but that there is no evidence he did it?  In some cases he is able to do more, as when he proves an alibi; but more is not necessary.  If he is not proved guilty, he is innocent of course.  His accuser, then, must affirm guilt, and prove it.

     And how could he prove that his book is innocent, but by denying that it is guilty, and challenging his opponent to proof?  Instead of going over every sentence, and showing that it is innocent, he challenges his adversary to prove guilt in any sentence.  If all this proceeds on the foundation of self-evident truth, why lodge it on the slippery ground of presumption of innocence, and pre-occupation?  It is an abuse of terms.

     “There is a presumption,” says His Grace, “against every thing paradoxical, i.e., contrary to the prevailing opinion: it may be true; but the burden of proof lies with him who maintains it; since men are not to be expected to abandon the prevailing belief till some reason is shown.”

    The burden of proof lies indeed with him who holds anything contrary to the prevailing opinion; but not more so than with him who holds what is in accordance with the prevailing opinion.  Every opinion is to be supported by the holders of it, with the arguments on which it rests; and the business of him who rejects it is to disprove these arguments.  If a man is not to be expected to abandon the prevailing belief till some reason is shown, neither is he rationally to be expected to adopt or retain the prevailing belief till he has a reason that convinces himself, though he is not bound to convince others.  As to the burden of proof, there is not the slightest difference between the wildest singularity and the most prevailing faith.  Every thing that claims belief must submit its evidence; else it cannot be rationally received.  Every thing believed must rest on evidence, else it cannot be rationally retained.  The burden of proof lies necessarily on the side of the opinion believed: the burden of disproof, or of showing that the arguments alleged in proof do not prove, lies on the other side.  Each side has its own peculiar proof.

     It is not only a fantastic, but an absurd and pernicious principle, that relieves the prevailing faith of the burden of proof.  If it is the prevail­ing opinion that the Man of the Moon has a beard down to his knees, am I obliged to make an expedition to that planet to determine the question by actual measurement?  Proof lies on the opinion, not on its opposers.  Besides, the very fact that his Grace gives a reason why men should not be expected to abandon the prevailing belief till some reason is shown, destroys his doctrine: for, if he gives a reason, then he rests not on a mere pre-occupation without evidence.

     Again, if mere pre-occupation determines the burden of proof, then the holder of the most singular opinion should not give it up till some reason is shown; that is, he may cast the burden of proof on the side of the prevailing opinion, for the singular opinion has pre-occupation in regard to him.

     Still further, if the prevailing opinion enjoys this prerogative, it will, in many cases, be a contest of which is the prevailing opinion.  The doc­trine of his Grace, on the burden of proof, is perfectly absurd.

[To Be Continued Next Week]