Page:Harvard Law Review Volume 4.djvu/83

67 THE BURDEN OF PROOF. 67 ( 3. ) In favor of the other meaning it may be said ( i ) that it is the one which is prominent in the Roman law and in countries which have the Roman system of pleading ; and ( 2 ) that for this exclusive sense there is a certain body of legal authority, e.g., that it has been formerly adopted as the only proper usage by one of our best courts, the Supreme Court of Massachusetts, and, in par- ticular opinions, has been approved by other tribunals and judges. ^ But ( I ) as to its use in the Roman system, although it would be desirable to harmonize our use of the term onus probandi with theirs, that cannot well take place so long as our conceptions, our methods of legal procedure, and the questions which enter into our legal discussions are so unlike theirs. ^ It may be observed also that the immediate intuitus of the phrase, as used in that system, was rather to the duty, at the beginning, of going forward with evidence, than to the duty at the end, of holding the case made out ; these two things, as I have said, are quite separable. According to the Roman conception he who had furnished evi- dence at the outset had furnished probatio. If counter evidence were offered, he must, indeed, keep up his probatio ; but the notion of probare and probatio was answered by a prima facie case. ( 2 ) As regards the fact, that there is high authority for fixing upon the phrase the single meaning of a burden of establishing, it may be doubted whether experience favors a continuance of this experiment. Chief Justice Shaw began it in 1832,^ and not, as I venture to think, with a sufficient recognition of the fact that the other use of the phrase was also perfectly well fixed in legal usage. During the following twenty-eight years of his most valuable judicial life, he was able to hold the terminology of his court with fair success to the new rule, and to establish it in that State. But the example of this strictness has not, I believe, been followed. The discrimination thus boldly marked has been recog- nized often in other courts, and this meaning allowed and even preferred, or suggested as the only proper one, in particular opin- ions ; but, so far as I know, no other court has undertaken to dis- tinctly and steadily reject the other meaning. Let me illustrate the difficulties that have attended the Massa- chusetts experiment. In 1 840 * Chief Justice Shaw restates his view, and calls the other use of the word " a common misapprehension of 1 See ante^ p. 50. * See ante, pp. 46, 55.
 * Powers V. Russell, 13 Pick. 69, 76. * Sperry v. Wilcox, i Met. 267.