Page:Harvard Law Review Volume 4.djvu/63

47 THE BURDEN OF PROOF, 47 ing who has this burden of proof, a precept which selects a cir- cumstance common to both meanings of the term, and, indeed, generally characteristic of the other one, namely, the duty of going forward with evidence, — we shall see how the confusion is likely to be heightened. Finally, if we go on to remark the way in which this topic is mixed up with that of presumptions, as when it is said that ** pre- sumptions of law and strong presumptions of fact shift the burden of proof," we have a glimpse of another fruitful source of con- fusion ; and in fact these two subjects of presumption and the burden of proof have intercommunicated their respective ambi- guities and reflected them back and forth upon each other in a manner which it is wellnigh hopeless to follow out.^ If all this or the half of it be true, it will be admitted that he would do a great service to our law who should thoroughly dis- criminate, explore, and set forth the legal doctrine of the burden of proof. But that would be a large undertaking. The fit performance of it would require a deep historical and critical examination of pleading and procedure, a careful consideration of legal presumptions and the principles of legal reasoning, and a just analysis of the fundamental conceptions of substantive law.^ Such a discussion would have to take a wide range, for the sub- ject belongs to universal jurisprudence, and the phrase and the things it stands for have a long descent. The leading maxims about it (often ill understood) are from the Roman law. During the Dark Ages and among our Germanic ancestors it had a very peculiar application. Conceptions coming from these periods still linger in our law, as will easily seem probable when we re- flect that not only do our early judicial records show the ordeal and other mediaeval modes of proof in full operation, but that wager of law and wager of battle were legally resorted to in England in the second and third decades of this century.^ With vi. 1 39), " and . . . instead of clear rules, such as the nature of things forbids to be estab- lished by anything but statute law, you have darkness palpable and visible." 2 It may be assumed, I suppose, that this phrase of the "substantive law," and Ben- tham's discrimination between this part of the law and that which is merely auxiliary to it, are already familiar. See e.g.^ Bentham's Works, vi. 7. " The adjective branch of law, or law of procedure, and therein the law of e vidence,has everywhere for its obj ect, at least ought to have, the giving effect ... to the several regulations and arrangements of which the substantive branch or main body of the law is composed." 8 For the mediaeval conception of the burden, or, as it generally was in those times,
 * " Look to the books," says Bentham, in speaking of the burden of proof (Works,