Page:Harvard Law Review Volume 4.djvu/82

66 66 HARVARD LAW REVIEW, fix upon it one of the two meanings now in use, and find another phrase for the other. In favor of the first course, there are the obvious reasons of clearness and precision. But it would be a mere dream to imagine that the phrase could ever be wholly ban- ished from legal usage. We might as reasonably expect to exclude it from the common speech of men. Use it we must. It remains only to choose in what sense it shall be used. Or shall we say here also, that it is hopeless to make a change } No doubt it is difficult, but it cannot be hopeless. A change is simply necessary to accurate legal speech and sound legal reasoning ; and we may justly expect that those who have exact thoughts, and wish to express them with precision, will avail themselves of some discrimination in terminology which will secure their end. Particular courts, or judges, or writers, may adopt the course of discarding this phrase altogether and substituting other terms ; that is an intelligible plan. But if any one prefers to follow the course which seems certain to be taken by the current of legal usage, that of retaining the phrase in some sense or other, he will be driven, if he would speak accurately, to tie up the term to a single meaning. Which then shall it be, that of going forward with proof, or that of establishing a given proposition in the upshot } {a.) In favor of the former there seem to be these considera- tions : (I.) It is the meaning that the term has in common speech. Whoever, men say, asserts a paradoxical proposition, has the burden of proof. But equally, they say, whoever supports his paradoxical proposition by sufficient evidence to make it probable, shifts the burden of proof, and now his adversary has it upon him^. (2.) This is also a common legal usage.^ (3.) It is a very comprehensive sense, for it includes not merely the duty of meeting a prima facie case against you, but also that of meeting a presumption, and that of going forward at the beginning. This last may be fixed upon the plaintiff by a mere rule of practice, as in Massachusetts,^ irrespective of his true place in the procedure ; or by the same considerations which de- termine whether a case is affirmative or negative ; but, however fixed, the duty itself is in its nature merely the duty of going for- ward with the argument or the evidence, a duty wholly separable from that of finally establishing. ^ See ante, p. 49. • Dorr V. Bank, 128 Mass. p. 358; Page v. Osgood, a Gray, 260.