BURDEN OF PROOF PART 2

Alexander Carson

    The burden of proof must necessarily lie on the side that needs the proof. This, surely, is the side that cannot subsist without an exhibition its evidence. If one side remains safe as long as the other proves nothing, it cannot be necessary for that side to undertake proof. For, if neither attempts proof, the negative is proved.  If I assert a doctrine, I must prove it for until it is proved it can have no claim to reception.  Strictly speaking, it exists only on its proof, and a mere affirmation of it is only an existence on affirmation.  If I obstinately refuse proof, I leave my doctrine without foundation, and a simple denial of it is sufficient. No man can be called on to disprove that which alleges no proof.  What is disproof, but the refutation of proof! And what has no proof needs no refutation.

    It must be observed, that though the burden of proof always lies on him who holds the affirmative, yet when he has alleged his proof, the objector is bound to proof.  That is, the objection must be proved before it can be admitted against the evidence. An objection can have no force till it is proved.  In fact, till it is proved it does not properly exist as an objection.  He who objects must affirm something to be inconsistent with that to which he objects.  If he refuses to prove, his objection ceases to exist.  It is perfectly the same thing as if he did not object.  If a man must prove his doctrine, an objector must prove his objection.  Every man must bear his own burden.  He who affirms must bear the burden of proving his affirmation: he who objects must bear the burden of proving his objection.  This is rational, clear, and self-evident law.  Indeed, the very phrase, burden of proof, or if the Latin is more edifying--the onus probandi--necessarily refers to proof, and not to refutation.  It is absurd to suppose that the burden of proof should lie on him whose only business is to disprove.  The burden of proof, as to different things, lies on both sides of any question. The holder of the doctrine is bound to submit the evidence on which his doctrine is founded: the objector to the doctrine must prove anything that he alleges as an objection.  Every man must prove that which his cause requires.  If I do not prove my doctrine, it falls: if my opponent does not prove his objections, they fall.  Here each of us must affirm, and each must prove what belongs to himself, but neither of us is to prove that which belongs to the other.  How different is this law from the erroneous principle employed by this great logician, to regulate the matter in question.  I proceed not a step but with the torch of self-evidence in my hand!

   My view of this subject is, I find, similar to that taken by the learned Lord Chancellor King, in the following passage from his “Enquiry into the Constitution, Discipline, Unity, and Worship of the Primitive Church,” p. 41.  Part II. 1691:

   “Now this being a negative in matter of fact, the bare assertion of it is sufficient proof, except its affirmation can be evinced.  Suppose it was disputed whether ever St. Paul writ an epistle to the church of Rome, the bare negation thereof would be proof enough that he did not, except it could be clearly evidenced on the contrary that he did.  So unless it can be proved that the ancients had fixed liturgies and prayer-books, we may very rationally conclude in the negative, that they had none at all.”

   I will admit the law, which I here lay down, to be equally binding in all inquiries after truth. When I contend with the Archbishop, I am bound to proof: my opponent has nothing to do but refute my proof. He is bound to prove all his objections; and a merely possible solution of a difficulty is sufficient to refute the objection.  So also with respect to every doctrine, and every institution that pretends authority from the word of God.   There is another observation of great importance on this subject.  The procedure is the same with respect to every individual, were there no one in the world to dispute with him.  I believe it is very generally supposed that a man may safely retain such institu­tions, as he believes to have the privilege of casting the burden of proof on the side of those who dispute them, till he is forced by his opponents. This is a monstrous mistake.  Were there no one to dispute with us about any of our doctrines or ordinances, we are equally bound to the proof of what we receive.  And in considering objections, we are to admit of none that are not proved.  We are fairly to act the part of both parties.  In this way only can we legitimately expect to arrive at truth.  The Archbishop refers to the procedure at law for a confirmation of his doctrine.  “Thus,” says he, “it is a well known principle of the law, that every man (including a prisoner brought up for trial,) is to be presumed innocent till his guilt is established.  This does not, of course, mean that we are to take for granted he is innocent; for if that were the case, he would be entitled to immediate liberation: nor does it mean that it is antecedently more likely than not that he is innocent.”

   Upon this I observe; First, though his Grace is the first logician of the age, he here confounds two distinct meanings of the word in question, and considers them as one.  When it is said that a prisoner is to be presumed innocent till he is proved guilty, the word presumed signifies supposed, considered, treated in law: that is, he is not to be legally alleged as guilty, till his guilt is established.  In fact, neither guilt nor innocence is properly presumed.  If innocence is presumed, it must be on account of something that makes guilt unlikely: if guilt is presumed, it must be from something that makes guilt more likely than innocence.  The law anticipates nothing as to his guilt or innocence; it pronounces no judgment till it hears the proof.

   But the word presumption in the phrase, “a presumption in favor of any supposition,” has a very different meaning, both in common use, and according to his Grace’s definition of it.  Accordingly, while the prisoner is to be legally considered innocent, there may be the strongest presumption that he is guilty.  He cannot, then, in the same sense, be presumed both innocent and guilty.  Besides, the prisoner’s being legally considered as innocent, till he is proved guilty, is never designated as “a presumption in favor of the innocence of the prisoner.”  There is not, then, even a legal use of the phrase, in his Grace’s sense.  In the case in which it is said that there is “a presumption in favor of the prisoner,” it will be understood by both learned and unlearned, both by the court and by the crowd, that there is something that renders innocence probable.

    Second, His Grace here confounds a law regulating those who judge in civil matters for others, with a law that respects every individual in regulating himself, as to his views of divine things.  A jury, whatever may be their opinion, is not to find a man guilty, but on evidence submitted in court; but the prisoner himself is not to form his judgment by this standard.

    Third, the prisoner is to be legally considered innocent, till his is proved guilty, but this is not from a pre-occupation of the ground.  There is nothing here that can be like a pre-occupation. 

    Fourth, the treatment of the prisoner is grounded on self-evident truths. If he did not commit the crime, he is actually innocent of it; and if it is not proved that he committed it, he is legally innocent of it.  If there is no proof of guilt, why should he be accounted guilty?  Here the burden of proof is regulated by the same self-evident principle.  The accuser must affirm and prove his affirmation.  If he refuses, the charge fails.  It is the accuser who needs the proof.  The want of proof of guilt is legal proof of innocence.  If there is no affirmation of guilt, there is no pretence for trial: if the affirmation of guilt is not proved, there can be no legal conviction.  All this is in perfect harmony with my doctrine.

[To Be Continued Next Week]