good pleas in any common case; but they will not be thought so in this instance. Before I could hope to make any impression, I should be expected not only to answer all that has ever been said by those who take the other side of the question, but to imagine all that could be said by them, - to find them in reasons, as well as answer all I find; and besides refuting all arguments for the affirmative, I shall be called upon for invincible positive arguments to prove a negative. And even if I could do all this, and leave the opposite party with a host of unanswered arguments against them, and not a single unrefuted one on their side, I should be thought to have done little; for a cause supported on the one hand by universal usage, and on the other by so great a preponderance of popular sentiment, is supposed to have a presumption in its favor, superior to any conviction which an appeal to reason has power to produce in any intellects but those of a high class."

He on whom the Burden of Proof rests, and against whom the Presumption lies, must overcome the existing preponderance of probabilities by throwing proof into the opposite scale. A very little may suffice, or a great deal may be needed, according as the presumption to be rebutted is a weak or a strong one.

One way of rebutting a presumption is by the introduction of evidence which raises a counterpresumption.

Counterpresumptions.

The presumption in favor of an established institution may be rebutted, even to a conservative mind, by evidence tending to show that the institution in question is an obstacle to the success.ful working of some other established institution, the superior value of which is admitted.

There is a presumption in favor of a system of laws under which a country has flourished; but if another country, similarly situated, has been still more prosperous under a different system of laws, there is a counter-presumption that the prosperity of the first country is due to other causes than her laws.

"With respect to the deference due to the opinions (written or spoken) of intelligent and well-informed men, it may be remarked that before a question has been fully argued, there is a presumption

that they are in the right; but afterwards, if objections have been brought which they have failed to answer, the presumption is the other way. The wiser. . . those opposed to you, . . . the greater is the probability that if there were any flaw in your argument they would have refuted you. This important distinction is often overlooked." 1

Presumptions shift from

The counter-presumption which rebuts the original presumption may, in its turn, be rebutted by further argument; and thus, in the course of a long discussion, each side may several times enjoy the advantage of the Presumption.

side to side.

Whether the burden of proof shifts at the same time with the presumption is a question on which legal authorities differ. In the courts of Massachusetts, it is held that the burden of proof rests throughout on the party on whom it rested when the issue was made up. In England, the law is as follows:

"The burden of proof in any proceeding lies at first on that party against whom the judgment of the Court would be given if no evidence at all were produced on either side, regard being had to any presumption which may appear upon the pleadings. As the proceeding goes on, the burden of proof may be shifted from the party on whom it rested at first, by his proving facts which raise a presumption in his favor.

“A, a married woman, is accused of theft and pleads not guilty. The burden of proof is on the prosecution. She is shown to have been in possession of the stolen goods soon after the theft. The burden of proof is shifted to A. She shows that she stole them in the presence of her husband. The burden of proving that she was not coerced by him is shifted on to [sic] the prosecutor." 2

The question is a narrow one, and turns upon a definition; for it may well be that the burden of proof as to the issue (the general proposition in dispute) is on one party throughout, but that as to subordinate questions it shifts from side to side as the case goes on.

1 Whately: Annotations to Bacon's Essays; Notes to the fiftieth Essay, "Of Studies."

2 Stephen: Digest, art. xcv.

Proof not to

A reasoner should, however, always avail himself of the Presumption, so long as it is in his fa- Burden of vor, and never assume the burden of prov- be unnecessaing what the experience of mankind has rily assumed. proved for him.

In criminal cases, the question upon whom rests the burden of proof may be a question of life or death.1

"A moderate portion of common sense will enable any one to perceive, and to show, on which side the presumption lies, when once his attention is called to this question; though, for want of attention, it is often overlooked: and on the determination of this question the whole character of a discussion will often very much depend. A body of troops may be perfectly adequate to the defence of a fortress against any attack that may be made on it; and yet, if, ignorant of the advantage they possess, they sally forth into the field to encounter the enemy, they may suffer a repulse. At any rate, even if strong enough to act on the offensive, they ought still to keep possession of their fortress. In like manner, if you have the presumption on your side, and can but refute all the arguments brought against you, you have, for the present at least, gained a victory: but if you abandon this position, by suffering this presumption to be forgotten, — which is in fact leaving out one of, perhaps, your strongest arguments, - you may appear to be making a feeble attack, instead of a triumphant defence.” 2

open

-

A reasoner who puts himself on the defensive by relying on the presumption in his favor is, moreover, likely to require different arguments and a different arrangement from those that would be necessary, if he were obliged to meet an opponent in the open field, or to attack him while behind strong entrenchments.

1 See York's Case, 9 Metcalf's (Massachusetts) Rep., 93.

2 Whately: Rhetoric, part i. chap. iii. sect. ix.

Importance of a good arrangement.

CHAPTER IV.

ORDER OF PROPOSITION AND PROOF.

THE importance of so arranging the several parts of an argumentative composition that they may render effective support to one another can hardly be over-estimated. Forces that could be beaten in detail may be irresistible when skilfully drawn up, and massed at the points of danger.

"You shall find hundreds of persons able to produce a crowd of good ideas upon any subject, for one that can marshal them to the best advantage. Disposition is to the orator what tactics, or the discipline of armies, is to the military art. And as the balance of victory has almost always been turned by the superiority of tactics and of discipline, so the great effects of eloquence are always produced by the excellency of disposition. There is no part of the science in which the consummate orator will be so decidedly marked out, as by the perfection of his disposition." 1

a

At the very beginning of his Oration on the Crown, Demosthenes justly demanded from his judges, as condition of fair play, freedom in the arrangement as well as in the selection of his arguments. Had he been obliged to adopt the arrangement of his adversary Eschines, as Eschines desired, he would necessarily have given undue prominence to the strong points of the case against him, and undue subordination to the strong points in his favor. Imagine a chess-player obliged to govern his moves by those of his opponent. Imagine Napoleon forced to adapt his lines to those of

1 J. Q. Adams: Lectures on Rhetoric and Oratory, vol. i. pp. 168-169. See also Appendix, p. 283.

the enemy, to post cavalry opposite to cavalry, artillery to artillery, infantry to infantry, whatever the character of the ground or the disparity of numbers. The most effective order in some circumstances is the least effective in others, for the conditions of each case determine the best order for that case. Hence, only the most general rules for arrangement can be given; but, if the principles which underlie those rules are once thoroughly understood, their application under new conditions will not be difficult.

Should the Proposition come first? or should the argument lead up to the Proposition through should the the Proof?

Proposition or the Proof come first?

We have already seen how important it is that a reasoner should himself, at the outset,1 clearly understand the Proposition he is to maintain; but it by no means follows that he should hasten to announce the Proposition to those whom he would convince of its truth. His first object should be to secure their favorable attention.

Now, to engage attention at all, it is desirable to appear to be saying something new. If, then, the Proposition is a truism to the persons addressed, it will usually be judicious to awaken their attention by beginning with what is novel in the Proof. Regarded from a new point of view, approached by a new path, the old conclusion will acquire a fresh interest, except, indeed, for those unfortunate persons whose minds are accessible to nothing but commonplace, and for whom, therefore, even a novelty must be presented in a commonplace dress.

If the Proposition, whether well known to the persons addressed or not, is likely to awaken their hos

1 See p. 185.