Page:Harvard Law Review Volume 4.djvu/64

48 48 HARVARD LAW REVIEW, the use of the jury came a new set of ideas and a new system of pleading, very different from those of Rome and modern continental Europe ; and gradually, with the slow and strange development of the jury system, and the irregular working out of common-law pleading, there has arisen and come into prominence a new set of discriminations. Much that never, in other times and countries, was the subject of legal dis- cussion, and never passed out from the mass of the unrecorded details of forensic usage, now, through the working of our double tribunal of judge and jury, and the constant necessity which it brings of marking their respective boundaries, and re- viewing in a higher court the instructions given by the judge to the jury, comes into the region of law and judicial precedent. Of all these things will the writer of that careful statement of which I speak find it necessary to treat. It is probable that he will have abundant occasion to remark in this region that obscure operation of obsolete conceptions to which Sir Henry Maine re- ferred in saying, " It may almost be laid down that in England nothing wholly perishes."^ At present I am concerned with no such task as this, but only with an attempt to help rid this phrase, the burden of proof, of some of the distressing ambiguity that attends it, {a) by pointing out the different conceptions for which it stands, and bringing to view some important discriminations ; {b) by considering the possibility of a better terminology for the subject ; and {c) by in- dicating its proper place in our law. I. In legal discussion this phrase is used in two ways : — ( I.) To indicate the duty of bringing forward argument or evi- dence in support of a proposition, whether at the beginning or later. (2.) To mark that of establishing a proposition as against all counter-argument or evidence. It should be added that there is a third indiscriminate usage, the privilege of proof, see Von Bar's *' Beweisurtheil " and Brunner's " Entstehung der Schwurgerichte,"/rtjjm. See also Professor Laughlin's paper on *' Legal Procedure" in " Essays on Anglo-Saxon Law," and Bigelow's " Hist. Proc. in England," ch. viii. In citing German books I should confess at once that I have to depend upon my friends for a knowledge of them, and should express my thanks to Mr. Gamaliel Bradford for the mostgenerous kindness in reading to me not only the whole of the two books above named, but others. I am also very much indebted to the accurate learning of a younger friend, Mr. Fletcher Ladd, of the Boston bar, for a knowledge of the contents of several Getman treatises relating more exclusively to the subject of this article. ^ Early Law and Custom, 187.