It may, on the other hand, be suggested that one who sees many analogies is in danger of mistaking fanciful for real ones, of making a mere metaphor do duty as an argument. Ruskin is a striking instance in point; and Mill himself cites Bacon as being "equally conspicuous in the use and abuse of figurative illustration." 1 Such is also Macaulay's opinion.

"The truth is, that his [Bacon's] mind was wonderfully quick in perceiving analogies of all sorts. But, like several eminent men whom we could name, both living and dead, he sometimes appeared strangely deficient in the power of distinguishing rational from fanciful analogies, — analogies which are arguments from analogies which are mere illustrations, — analogies like that which Bishop Butler so ably pointed out between natural and revealed religion, from analogies like that which Addison discovered between the series of Grecian gods carved by Phidias and the series of English kings painted by Kneller. This want of discrimination has led to many strange political speculations. Sir William Temple deduced a theory of government from the properties of the pyramid. Mr. Southey's whole system of finance is grounded on the phenomena of evaporation and rain. In theology, this perverted ingenuity has made still wilder work. From the time of Irenæus and Origen,

down to the present day, there has not been a single generation in which great divines have not been led into the most absurd expositions of Scripture by mere incapacity to distinguish analogies proper (to use the scholastic phrase) from analogies metaphorical.” 2

1 Mill: Logic, book v. chap. v. sect. vi.

2 Macaulay Essays; Bacon.

CHAPTER III.

BURDEN OF PROOF AND PRESUMPTION.

BEFORE determining in what order to present his arguments, a reasoner should know which Burden of side is bound to prove the proposition in Proof defined. dispute; upon which side, in other words, rests the Burden of Proof.

The general rule, in courts of law, on this subject is embodied in the maxim that "he who affirms must prove."

"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist." 1

"The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person.

"A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.

"B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it." 2

The principle of this legal maxim applies to argumentative composition. One who would convince others of a proposition which they do not believe is bound to prove that proposition. A man cannot be

1 Stephen: Digest of the Law of Evidence, chap. xiii. art. xciii.
2 Ibid., art. xcvi. See, however, p. 224.

expected to change his opinions unless and until reasons for a change are adduced, as a court will not act unless and until evidence has been given which furnishes reasons for its action.

Presumption

A reasoner upon whom the Burden of Proof does not rest has, usually, the Presumption 1 in his defined. favor; that is, the proposition he maintains is taken1 as true in advance 1 of direct proof. A Presumption, in the words of a distinguished English lawyer,2

1

,2" is simply an avowedly imperfect generalization ; and this must, of course, be founded on experience." Experience having told us that such and such things have happened, we presume, in the absence of direct evidence, that similar occurrences happened or will happen in similar circumstances. "Proof," said Lord Erskine, "is nothing more than presumption of a high order;" for proof simply creates an exceedingly strong probability.

Confusion has been created by confounding what Presumptions are called Presumptions of law with Pre

of law. sumptions proper. A presumption of law might more properly be termed an assumption; for it is equivalent to "a rule of law [perhaps arbitrary] that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved." 4

"A person shown not to have been heard of for seven years by those (if any) who if he had been alive would naturally have heard of him, is presumed to be dead unless the circumstances of the case

1 From prae, before, and sumo, take.

2 Stephen: Liberty, Equality, and Fraternity, p. 201.
3 By Archbishop Whately, for instance.

4 Stephen: Digest, chap. i.

are such as to account for his not being heard of without assuming his death." 1

A person accused of a crime is presumed to be innocent.

A presumption of this class—a presumption capable of being rebutted — used to be called presumptio juris; and the term is still used in many of the books.

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The presumption known in the old books as presumptio juris et de jure, or as a conclusive presumption," is more intelligibly called conclusive proof.

"Conclusive proof means evidence upon the production of which, or a fact upon the proof of which, the judge is bound by law to regard some fact as proved, and to exclude evidence intended to disprove it." 2

Such is the rule that a child under seven years of age is incapable of committing a crime.

Presumptions

The Presumptions which have place in argumentative composition are, on the other hand, what the law books call presumptiones hominis, Pre- proper. sumptions of fact,-inferences, or arguments, drawn from known facts of experience, and varying in force and in direction with experience.

The presumption that snow will fall at New York in the course of a given winter is much stronger than that it will fall at Naples in the same winter, but is not so strong as the presumption that the tides will ebb and flow next year as they have always done within known human experience.

A few years ago, there was a presumption against the possibility of telegraphic communication between Europe and America; but now the presumption would be in favor of the successful use of a new cable.

There is for every man a presumption in favor of the correctness of the opinions, religious, political, scientific, literary,— in which he has been brought up.

In some minds, a presumption is raised in favor of the correctness of opinions which are expressed with dogmatic positiveness, in others against them, some concluding from facts which they

1 Stephen: Digest, art. 99.

2 Ibid., chap. i.

have observed that a man who did not know would not be so sure he was right, others that he is so sure because he does not know the arguments on the other side.

Previous good character affords a presumption of innocence; a liberal education affords a presumption of knowledge of books; a business life, a presumption of knowledge of affairs.

There is, in general, a presumption against any thing contrary to received opinions; for it is presumed that they would not be received opinions unless the probabilities of truth were in their favor.

A similar presumption exists against every movement that is in opposition to established institutions; for it is presumed that they were established for good reasons. He who would overthrow what is established is bound to show either that those reasons no longer exist, or that they are overborne by stronger reasons for a change. The present mode of burial, for example, has the presumption in its favor; and, therefore, the advocates of cremation are obliged to bring forward arguments to show the desirableness of a change. Another example may be taken from Mill's paper on "The Subjection of Women:

"In every respect the burthen is hard on those who attack an almost universal opinion. They must be very fortunate as well as unusually capable if they obtain a hearing at all. They have more difficulty in obtaining a trial, than any other litigants have in getting a verdict. If they do extort a hearing, they are subjected to a set of logical requirements totally different from those exacted from other people. In all other cases, the burthen of proof is supposed to lie with the affirmative. . . . It is useless for me to say that those who maintain the doctrine that men have a right to command and women are under an obligation to obey, or that men are fit for government and women unfit, are on the affirmative side of the question, and that they are bound to show positive evidence for the assertions, or submit to their rejection. It is equally unavailing for me to say that those who deny to women any freedom or privilege rightly allowed to men, having the double presumption against them that they are opposing freedom and recommending partiality, must be held to the strictest proof of their case, and [that] unless their success be such as to exclude all doubt, the judgment ought to go against them. These would be thought