Page:Harvard Law Review Volume 4.djvu/81

65 THE BURDEN OF PROOF, 65 of presumption are adopted for a variety of reasons ; that they are not fixed merely with reference to litigation and procedure, but are a part of the machinery for the general administration of justice. They are propositions which, for any purpose, fix the legal equiva- lence of one set of facts with another. The need of them comes up very often in considering whether a given fact, as death, or life, or title, has been sufficiently proved, but often, also, in determining merely what the substantive law of property or persons may be.^ The validity, then, of this proposition that a presumption of law fixes the burden of proof (in the sense of establishing), depends on the question whether in any given instances it fixes the affirmative or the negative character of a case for purposes of procedure ; and since that question has to be first determined, there seems to be no need of introducing the notion of presumption at all. IV. As regards a proper terminology for the conceptions now indicated by the " burden of proof." It seems impossible to approve a continuation of the present state of things, under which ideas of great practical importance, and of very frequent applica- tion, are so imperfectly and dubiously intimated. What can be done } Of courses that are theoretically possible there are three ; to abandon the use of this phrase and choose other terms, or to to recover property, he says, the foundation of them is the plaintiff's present ownership; it will not, therefore, be enough to allege that he or his ancestor once had a good title unless on proof of that '* the law will raise a presumption that the plaintiff owns the res now," or, as it is again put, "that he continues to own it until his death ;" but there is such a presumption ; had the right of alienation been coeval with the right of property, this would probably have been otherwise; but under the feudal system, as regards land, there was no such right of alienation. "When alienation came to be allowed, the presumption, of course, ceased to be conclusive, but it remained until rebutted; and, as there has been nothing to destroy it, it doubtless continues to exist to this day," etc., etc. The conception here appears to be that the former rule of real property was a con- clusive •* presumption of law," that the statute made it a rebuttable presumption of law, and that this presumption of law fixes the "burden of proof*' and so determines who holds the affirmative case (see s. 108). But why bring in the term or the notion of " presumption" ? Does it not all come down to this that a former rule of the substantive law has been changed by statute, and that he who would avail himself of the statute novelty must set up and prove the matter that entitles him to it, — according to the principle of the rule (Stephen, Pleading (Tyler's ed.), 295, note _>') that " regulations introduced by statute do not alter the forms of pleading at common law," The rule, in this instance, which determines the affirmative case, seems to have nothing to do with any notion of presuming the continuance of a state of things which is notoriously obsolete, and the "presumption " appears to be a mere form of expression. of Evidence *' in 3 Harv. Law Rev, 141.
 * On this subject the writer begs to refer to an article on ' * Presumptions and the Law