Although it will generally be easy to determine on which side the burden of proof lies, it may be of service to lay down some general principles which regulate the determination of this matter.

§ 163. The first general principle in regard to the burden of proof is, that the affirmative of every issue is to be proved.

This is a principle in English jurisprudence derived from the maxim of the civil law: "Ei incumbit probatio qui dicit, non qui negat."

This is not, however, a principle of universal application, and must often give way to some others to be named in the following sections.

In the interpretation of this principle it should be borne in mind that the stress is to be laid on the fact of alleging or affirming, not on the form of the proposition itself as affirmative or negative. The principle is, He who alleges must prove. If the allegation be in the negative form, it does not shift the burden of proof. The fundamental ground on which the principle rests is, that whatever is new shall be accounted for. He who makes an allegation puts into being a statement that did not exist before. He is properly called upon to account for it prove it and thus make it a truth.

§ 164. The presumption, further, is generally in favor of what already exists and against a change, whether the question be one of truth, of right, or of expediency.

There is a presumption, thus, in favor of prevailing opinions and sentiments. They are not to be rejected until evidence has been advanced against them. Even such as seem at first sight absurd or ridiculous are sometimes found afterward to be founded in truth. The Indians living in the vicinity of the North American Lakes generally entertained the opinion that those lakes were subject to a periodical rise

and fall. This was ridiculed at one time as an absurd superstition; subsequent observations, however, seem to countenance the Indian tradition.

On the other hand, the proposer of new opinions may be justly called upon to present evidence in their favor; and may be properly regarded as unworthy of credit until such evidence be produced. He cannot even claim that the public mind should be in a state of impartial equilibrium. His opinions must be rejected until positive evidence be adduced. So, likewise, there is a presumption in favor of existing institutions; that they are founded in truth and reason, and are for the public benefit. The fact that they exist creates a claim in their favor, which cannot be overbalanced by evidence against them that would suffice in a case exactly poised in the opinions of men. The reformer is required to make out a clear, positive case, before he can expect to be credited. In like manner, possession is presumptive title to property. In contests of title, accordingly, the burden of proof rests on the party that is not in possession. In case of uncontested occupancy for twenty years, under the English law, the presumption was held to be so strong that that title could not be assailed by any proof.

§ 165. The presumption, moreover, is in favor of rectitude; in other words, should be charitable.

It is a reasonable principle in law, thus, that a man be accounted innocent of crime until he be proved guilty. A witness is to be believed, unless evidence is furnished of falsehood. A man's integrity, generally, may not be questioned until proof appears against him. His motives, also, are to be regarded as pure until impeached by positive evidence.

This is a principle, not only supported by considerations of expediency, since the charitable man generally succeeds best in avoiding the ills and securing the enjoyments of life, but founded in abstract truth and reason.

§ 166. Once more, the presumption is on the side of whatever promotes the well-being of men, and against whatever is restrictive or injurious.

There is a presumption, thus, in favor of Christianity, because it is favorable, as is admitted even by its enemies, to the best interests of human society. The presumption, on the other hand, lies against whatever retards the progress of society, restricts or confines the energies of men, or injuriously affects their best interests.

The ultimate general principle on which these last particular maxims of presumption rest, seems to be this: that the world is governed by infinite intelligence controlled by perfect rectitude and goodness. In respect to this, the sentiment is true, that "whatever is, is right"; and the proper and the genuine results of goodness and truth harmonize with each other, and also with what, for the most part, transpires in Providence. In all cases of presumption, consequently, whatever accords with the natural laws of Providence is to be presumed to be true, right, or expedient, as the case may be.

§ 167. One presumption may sometimes be opposed by another, when the circumstances of the case must determine which shall outweigh the other.

Mohammedanism, thus, exists; and so far a presumption lies in its favor. With those who know of nothing existing in incompatibility with it, and who are not informed or convinced in regard to its evil effects, perhaps, this fact of its existence would furnish a strong presumption in favor of continuing it. But its allowance of violence, and its evil effects generally, are to those who are convinced of this, a sufficient rebutter against the presumption drawn from the fact of its existence.

CHAPTER VII.

OF REFUTATION.

§ 168. BY REFUTATION, in its more limited sense, is meant the overthrow of opposing arguments.

Refutation is sometimes taken in the sense of defense generally. Thus the argument of the defendant in a judicial trial has been denominated a refutation. But in the more proper use of the word, refutation has been restricted to the overthrow of objections or opposing arguments.

§ 169. Refutation proper consists in the overthrow either of one of the premises on which an objection rests, or of the conclusiveness of the reasoning.

While refutation is governed by the same general principles that apply to all argumentation, and has to do with the same arguments or kinds of proof, it possesses the peculiarity, that it is applied to the overthrow of opposing arguments. Hence, a more direct call is made in it on the logical principles for the detection of sophistical reasoning. The overthrow of a premise falsely or incorrectly assumed in an objection, may, indeed, be accomplished in other methods common to all reasoning; but the detection of error in the course of the reasoning is to be effected in accordance with the principles of logic, which expose the possible modes of sophistical argumentation.

§ 170. As all evidence does not possess the character of absolute certainty, it is possible, in some cases, that there may be real evidence, or valid arguments,

on both sides of the question. In such cases, it is not indispensably necessary to refute the opposing arguments; but it may be sufficient, while allowing them their proper weight, to overbalance them with arguments of greater weight.

This is a principle ever to be borne in mind, that, in cases of probable reasoning generally, arguments really valid may be advanced on both sides. The existence of such unanswerable arguments should not confound or disconcert. The opposite side may still be that of truth. In such case, it seems important to apply the principles of the Topics; to determine carefully the degree of weight to be allowed the objection, and to oppose to it an argument of a higher rank, or an accumulation of arguments of the same class.

§ 171. It is always sound policy to state objections fairly, and to allow them all the force to which they are entitled.

Nothing is more opposed to persuasiveness in reasoning, than the appearance of unfairness. Sound principle was accordingly reckoned by the ancients among the three essential requisites in the character of the orator. Where the speaker is to appear before the same audience frequently, or to address one acquainted with his character as a candid and honest reasoner, the necessity of observing this principle is manifest. And even where the general character of the speaker can have no influence in favorably disposing the minds of the hearers, still, as unfairness is with difficulty disguised, and even suspicion of it is exceedingly prejudicial; as, moreover, the consciousness of candor and fairness will give the speaker himself a tone of confidence and authority, itself most favorable to effect, it is ever safest, as a matter of policy, to conduct the argumentation in perfect fairness.

§ 172. The principles of arrangement in regard to refutation are substantially the same as those which