BURDEN OF PROOF

Examination of the Doctrine of Archbishop Whateley on the Subject of the Burden of Proof, with a View to its Bearing on Infant Baptism, Episcopacy, and Religious Rites

[Reprinted, with permission, from Baptism: Its Mode and Subjects, by Alexander Carson]

    I ENTIRELY agree with the present distinguished Archbishop of Dublin, that, in the discussion of any question, it is of immense importance to ascertain with precision on which side lies the necessity of proof. But I utterly disagree with his Grace, in his doctrine on this subject. I shall, therefore, as the question of infant baptism is concerned in the decision, devote a few pages to the examination of what has been advanced by this learned writer.

    “It is a point of great importance,” says the Archbishop, "to decide in each case, at the outset, in your own mind, and clearly point out to the hearer, as occasion may serve, on which side the presumption lies, and to which belongs the…burden of proof.  For though it may often be expedient to bring forward more proofs than can fairly be demanded of you, it is always desirable, when this is the case, that it should be known, and that the strength of the cause should be estimated accordingly." This passage expresses the substance of what I have often advanced, and what I have always practiced. Controversy cannot be skillfully conducted without a perfect acquaintance with the laws that regulate this matter. But in what follows this quotation, I differ from his Grace in almost every step. “According to the most correct use of the term," says the author, “a presumption in favor of any supposition means, not (as has sometimes been erroneously imagined) a preponderance of probability in its favor, but such a preoccupation of the ground as implies that it must stand good till some sufficient reason is adduced against it; in short, that the burden of proof lies on the side of him who would dispute it."

    Now I do not think that this account of the most correct use of the word presumption, in the phrase to which he refers, is at all a just one.

    And he has given no examples from use to justify what he approves, or to condemn what he censures. Mere assertion is no proof; and nothing but instances from the language can have a right to a hearing on this question. In opposition to his Grace, I contend that the phrase “a presumption in favor of any supposition," always implies that there is something [that] renders such supposition probable, previously to the examination of the proof, or independently of it. In proof of this, I might allege innumerable examples. "If one opinion is universally prevalent,” says Zimmerman on Solitude, "it amounts to a presumption that no one has a sentiment of his own.” Does this imply no degree of antecedent probability?

    Dr. Johnson assigns as the strict meaning of this word, “an argument strong, but not demonstrative--a strong probability." As an example he quotes the following passage from Hooker: “The error and [insufficiency] of their arguments doth make it, on the contrary, a strong presumption, that God hath not moved their hearts to think such things as he hath not enabled them to prove." Here the word imports probability.

    I may here observe, incidentally, with respect to the strict meaning assigned to this word by Dr. Johnson, that it is an instance of what I have asserted with respect to the caution necessary in taking secondary meanings from lexicons and dictionaries. This greatest of lexicographers alleges the passage from Hooker as using the word presumption for a strong probability. But the idea of strength is not in the word presumption; the epithet strong is added to it--"a strong presumption.”

    But where does this writer find any passages in which the word presumption signifies pre-occupation of the ground? I can think of none either in vulgar or in correct use. I appeal to the universal practice of the language. When we say that there is "a presumption in favor of any supposition," we always mean that there is something which makes it probable antecedently to the consideration of the direct conclusion, --never that it has such a pre-occupation of the ground, as casts the bur­den of proof on the side of him who would dispute it.

    With respect to the burden of proof, I shall submit the following observations:

    First: If the burden of proof lies on one side of every question, it is self-evident that there must be a self-evident principle to determine, in every case, on which side it lies. It is often said, that controversy has no end; but if there is not in every case a self-evident principle to determine on which side lies the burden of proof, controversy could have neither beginning nor end. Discretionary laws can have no place, because they have no authority.

    Second: Is it self-evident that pre-occupation, which may be accidental, necessarily casts the burden of proof on the other side? It is not self-evident. It is a mere arbitrary figment, totally destitute of self-evident authority.

    Third: It is self-evident that pre-occupation of ground does not cast the burden of proof on the opposite side, for this might establish error rather than truth.

    Fourth: If proof is a burden, it is still more clearly self-evident that there must be a self-evident principle, in all cases, to determine the bearing of this burden. Nothing can be more absurd, than to suppose that a pre-occupation, implying no probability, could confer such a prerogative.

    Fifth: Even the highest antecedent probability affects not the burden of proof.

    Sixth: It is self-evident that in every question the burden of proof lies on the side of the affirmative. An affirmation is of no authority without proof. It is as if it had not been affirmed. He who denies has nothing to do till proof is advanced on the other side. Can he refute evidence till it is advanced? Does not his Grace himself not only admit but assert this when, in his censure of those who do not avail themselves of the privilege of casting the burden of proof on the opposite side, declares that in such a case there is "absolutely nothing in the other scale?” If, then, there is absolutely nothing in the opposite scale, can it be necessary to fill the other scale to outweigh nothing?

    This may be brought to the most decisive test.  Let the combatants agree as to the side on which lies the burden of proof, and both perversely refuse to commence the encounter; the person who affirms, in every instance, loses his cause. If he submits no arguments in proof, there is no evidence of its truth, and it cannot rationally be received. The negative, without speaking a word, has all it needs: if nothing is alleged in proof, there can be no necessity to disprove. This law of controversy has always appeared to me perfectly self-evident; and it is one of great importance. For nothing can be truer than what is asserted by the Archbishop, on the importance of knowing and respecting the law with respect to the burden of proof.  When a man engages to prove, in a case in which proof lies on his antagonist, he always injures his cause, and in some cases he may bring it unjustly into suspicion, or even destroy it. For sometimes the negative may be capable of no other proof, than that the affirmative is not proved; and this is perfectly sufficient.

[To Be Continued Next Week]