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. He is not to be called on to prove his right; but the claimant, to disprove it; on whom consequently the "burden of proof" lies.

Importance of deciding

on which

onus proban

di.

A moderate portion of common sense will enable any one to perceive, and to shew, on which side the Presumption lies, when once his attention is called to this question: though, for want of side lies the attention, it is often overlooked: and on the determination of this question the whole character of a discussion will often very much depend. A body of troops may be perfectly adequate to the defence of a fortress against any attack that may be made on it; which yet, if, ignorant of the advantage they possess, they sally fo.th into the open field to encounter the enemy, may suffer a repulse. At any rate, even if strong enough to act on the offensive, they ought still to keep possession of their fortress. In like manner, if you have the "Presumption" on your side, and can but refute all the arguments brought against you, you have, for the present at least, gained a victory: but if you abandon this position, by suffering this Presumption to be forgotten, which is in fact leaving out one of, perhaps, your strongest arguments, you may appear to be making a feeble attack, instead of a triumphant defence. Such an obvious case as one of those just stated, will serve to illustrate this principle. Let any one imagine a perfectly unsupported accusation of some offence to be brought against himself; and then let him imagine himself, instead of replying (as of course

he would do) by a simple denial, and a defiance of his accuser to prove the charge, setting himself to establish a negative, — taking on himself the burden of proving his own innocence, by collecting all the circumstances indicative of it that he can muster: and the result would be, in many cases, that this evidence would fall far short of establishing a certainty, and might even have the effect of raising a suspicion against him; he having in fact kept out of sight the important circumstance, that these probabilities in one scale, though of no great weight perhaps in themselves, are to be weighed against absolutely nothing in the other scale.

The following 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 favour of every 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 shew cause for it. No one is called on (though he may find it advisable) to defend an existing institution, till some argument is adduced against it: and that argument ought in fairness to prove, not merely an actual inconvenience, but the possibility of a change for the better.

Every book again, as well as person, ought to be presumed harmless (and consequently the copy-right 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.

There is a "Presumption " against any thing paradoxical, i. e. contrary to the prevailing opin- Presumption

Paradox.

ion: it may be true; but the Burden of proof against a lies with him who maintains it; since men are not to be expected to abandon the prevailing belief till some reason is shewn.

Hence it is probably that many are accustomed to apply "Paradox" as if it were a term of reproach, and implied absurdity or falsity. But correct use is in favour of the etymological sense. If a Paradox is unsupported, it can claim no attention; but if false, it should be cen sured on that ground; not for being new if true, it is the more important, for being a truth not generally admitted. "Interdum vulgus rectum videt; est ubi peccat." Yet one often hears a charge of "paradox and nonsense brought forward, as if there were some close connexion between the two. And indeed, in one sense this is the case; for to those who are too dull, or too prejudiced to admit any notion at variance with those they have been used to entertain (nagudar), that may appear nonsense, which to others is sound sense. Thus Christ crucified" was "to the Jews, a stumbling-block, (paradox,) and to the Greeks, foolishness; " because the one "required a sign" of a different nature from any that appeared, and the others "sought after wisdom" in their schools of philosophy.

Accordingly there was a Presumption against the Gospel in its first announcement. A Jewish peasant claimed to be the promised Deliverer, in whom all the nations of the Earth were to be blessed. The Burden

of proof lay with Him. No one could be fairly called on to admit his pretensions till He shewed cause for believing in Him. If He had not done among them the works which none other man did, they had not had sin."

Now, the case is reversed. Christianity exists; and those who deny the divine origin attributed to it, are bound to shew some reasons for assigning to it a human origin: not indeed to prove that it did originate in this or that way, without supernatural aid; but to point out some conceivable way in which it might have so arisen.

It is indeed highly expedient to bring forward evidences to establish the divine origin of Christianity: but it ought to be more carefully kept in mind than is done by most writers, that all this is an argument "ex abundanti," as the phrase is,—over and above what can fairly be called for, till some hypothesis shall be framed, to account for the origin of Christianity by human means. The Burden of proof now lies plainly on him who rejects the Gospel: which, if it were not established by miracles, demands an explanation of the greater miracle, its having been established, in defiance of all opposition, by human contrivance.

The Burden of proof, again, lay on the authors of the Reformation: they were bound to shew cause for every change they advocated; and they admitted the fairness of this requisition, and accepted the challenge. But they were not bound to shew cause for retaining what they left unaltered. The Presumption was, in those points, on their side; and they had only to reply to objections. This important distinction is often lost sight of, by those who look at the "doctrines &c. of

the Church of England as constituted at the Reformation," in the mass, without distinguishing the altered from the unaltered parts. The framers of the Articles kept this in mind in their expression respecting infantbaptism, that it "ought by all means to be retained." They did not introduce the practice, but left it as they found it; considering the burden to lie on those who denied its existence in the primitive church, to shew when it did arise.

The case of Episcopacy is exactly parallel: but Hooker seems to have overlooked this advantage: he sets himself to prove the apostolic origin of the institution, as if his task had been to introduce it. Whatever force there may be in arguments so adduced, it is plain they must have far more force if the important Presumption be kept in view, that the institution had notoriously existed many ages, and that consequently, even if there had been no direct evidence for its being coeval with Christianity, it might fairly be at least supposed to be so, till some other period should be pointed out at which it had been introduced as an innovation.

of proof.

It is worth remarking, that a Presumption may be rebutted by an opposite Presumption, so as Transferring to shift the Burden of proof to the other side. the Burden 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