BURDEN OF PROOF

"It should be also remarked, under this head," says the author, "that in any one question the presumption will often be found to lie on different sides, in respect of different parties; e.g., in the question between a member of the Church of England and a Presbyterian, or member of any other church, on which side does the presumption lie? Evidently, to each, in favor of the religious community to which he at present belongs. He is not to separate from the church of which he is a member, without some sufficient reason to allege."

In the Archbishop's sense of the word presumption, this appears to be a paradox in the worst sense of the word. It is impossible that two can have previous possession of the same thing. One may have pre-occupation of one part of the disputed property, and another of another; but unless they are as clever as St. Dennis, who kissed his own head, they cannot be both put in possession of the same thing.

And the paradox is obviously founded on a confounding of things that are different. The presumption of the Episcopalian is not the presumption of him who holds the bishop and the presbyter to be the same officer. The pre-occupation of the Episcopalian, as the Archbishop formerly stated, is a present occupation preceded by a previous occupation notoriously many ages' duration. But here the pre-occupation respects present possession, that is, to have authority with none but themselves respectively. In this kind of pre-occupation the Episcopalian is only on a footing with his opponent. And this is a most useless pre-occupation that equally belongs to all opinions, and is to have influence only on those who hold them. This cannot affect the burden of proof. The pre-occupation in which episcopacy glories, is not the pre-occupation here recognized.

If this is presumption, and if presumption has the privilege of casting the burden of proof on the other side, then every man has a right to decline defending his own opinions, and to cast the burden of proof upon those who dispute them. Can anything be more monstrous?

“It is worth remarking," says the author, "that a presumption may be rebutted by an opposite presumption, so as to shift the burden of proof to the other side: e.g., suppose you had advised the removal of some existing restriction: you might be, in the first instance, called on to take the burden of proof, and allege your reasons for the change, on the ground that there is a presumption against every change. But you might fairly reply, True, but there is another presumption which rebuts the former: every restriction is in itself an evil; and therefore there is a presumption in favor of its removal, unless it can be shown necessary for prevention of some greater evil; I am not bound to allege any specific inconvenience; if the restriction is unnecessary, that is reason enough for its abolition: its defenders therefore are fairly called on to prove its necessity."

It is true that a presumption may be rebutted by an opposite presumption, if the word is taken in its common English sense. But I cannot see how this is true according to the sense in which the word is explained by the Archbishop. If one thing pretends pre-occupation, how can it be rebutted, as to pre-occupation, but by proving that its pretensions to pre-occupation are false? If by pre-occupation it has the privilege of casting the burden of proof on its opponent, how can this burden be cast upon it, except it is proved not to have the pre-occupation which it pretended? One of them only can have pre-occupation, and consequently that one only can have presumption. Can each of them be before the other? This would be like the seven ladies, who were each of them handsomer than another.

A change is in itself neither good nor evil; it is good or evil according to the nature of the thing changed: consequently it cannot be a sound, just principal that “there is a presumption against every change.” A presumption, in the English sense of the word, that lies against change, must be founded on the supposition that the thing sought to be changed, was at first the result of wisdom, or at least of deliberation This is the case with respect to all laws. But mere pre-occupation has not the smallest authority. And though when a legislator calls for the change of a law, it is implied that he considers it either bad or useless yet in all cases the defender of the law is bound to prove the utility or innocence of the law: his opponents have nothing to do but to disprove his arguments and show that he has failed to prove its innocence or its utility. If they succeed, the law is justly dead.

What does the learned author mean by presumption when he says that "there is a presumption in favor of the removal of every restriction, unless it can be shown necessary for the prevention of some greater evil?" If every restriction is in itself an evil, can certainty be more certain than that it should be removed, if unnecessary? Here presumption turns out to be self-evidence, and the restriction being unnecessary, is never enough for its removal. Here presumption is more than probability, and rests on self-evident truth

But does not the Archbishop here abandon his own doctrine? Has not the restriction pre-occupation? According to the author, then, the burden of proof falls on those who dispute it. Yet he puts the burden of proof on those who defend the restriction, on the ground of self-evident truth. "Its defenders," he asserts, "are fairly called on to prove its necessity." If so, pre-occupation has no authority.

The following passage, quoted by the writer from Dr. Hawkins, is entirely in harmony with my doctrine. "In no other instance perhaps besides that of religion, do men commit the very illogical mistake of first canvassing all the objections against any particular system whose pretensions to truth they would examine, before they consider the direct arguments in its favor." Now, if the arguments in favor of a doctrine or system are first to be considered, who is it that is obliged to state these arguments? Must it not be the person who holds the doctrine or system? How can the objector reply to arguments that are not laid before him? And it is perfectly the same thing with a man examining his own system, or doctrine: he must first consider the arguments in proof, and afterwards the objections: for it is an important truth that is stated by Dr. Hawkins, that "there may be truth, and truth supported by irrefragable arguments; and yet at the same time obnoxious to objections, numerous, plausible, and by no means easy of solution." I go farther; there may be truth liable to objections that to us may be unanswerable, while the proof is irrefragable.

But the next quotation is not in accordance with this. He adds, "that sensible men, really desirous of discovering the truth, will perceive that reason directs them to examine first the arguments in favor of that side the question where the first presumption of truth appears. And the presumption is manifestly in favor of that religious creed already adopted by the country.” Reason directs to begin the inquiry as to the truth of any religion, by examining the evidences alleged in its favor, whether antecedent probability be favorable or unfavorable. But it is monstrous to suppose that there is a "presumption of truth" in favor of the religion of a man's country. What relation to truth has the relation of a man to his country? According to this doctrine there is a presumption of the truth of every religion in the world. What is the value of that presumption in favor of any religion, which is equally a presumption in favor of every other religion?

Upon the whole, the doctrine of the learned and scientific Archbishop, on the subject of the burden of proof, is neither scriptural nor philosophical: it is self-evidently false. Presumption is not pre-occupation of the ground, and pre-occupation decides not the privilege. The burden of proof cannot be directed by any arbitrary principle, but must be determined by self-evidence from the nature of the theory. The side that affirms needs the proof, and the side that needs the proof must produce it. Infant baptism, then, and episcopacy, and all religious rites, must show their authority in Scripture, or perish with the other human inventions discontinued at the Reformation. "Every plant which my heavenly Father bath not planted shall be plucked up."

I will close my observations on his Grace's doctrine, with stating a presumption. I appeal to every man of candor, is there not a vehement presumption against the supposition that infant baptism is in Scripture, when so eminent a scholar as the Archbishop of Dublin labors so hard to find it a slippery foundation in pre-occupation? Were it in Scripture, Dr. Whatley is the man who could defend its title against every opponent.

He who affirms that instrumental music may be used in worship or he who denies it?

He who affirms that one can be saved without being baptized in the name of Jesus Christ for the remission of sins or he who denies it?

He who affirms that sprinkling or pouring will suffice for baptism or he who denies it?

He who affirms that local churches may contribute from their treasuries to orphan homes or he who denies it?