52 HARVARD LAW REVIEW. knowledge. . . . This indeed is not allowed to supply the want of necessary proof, " etc. ^ (b.) A striking instance, at once of the common English sense of the term, and of the perplexing way in which this is mixed up with the other sense of it, is found in a recent opinion of so great a judge as Lord Blackburn. In an Irish negligence case ^ a very interesting discussion arose as to the relation between the court and the jury, and the circumstances under which a judge can direct a verdict ; incidentally it touched the burden of proof. Lord Blackburn, who held, in this case, that a verdict should be entered for the defendants, put his view thus : To justify this, " it is not enough that the balance of testi- mony should be overwhelmingly on one side, " so that a verdict the other way ought to be set aside, but " the onus must be one way, and no reasonable evidence to rebut it. " By " onus " and " onus of proof, " Lord Blackburn does not mean the duty of ulti- mately establishing a proposition ; but his use of the term is so connected with that meaning, and with the doctrine that the general issue does not necessarily mean a negative case, that it will be instructive to quote his words : " It is of great impor- tance to see on whom the onus of proof lies, for if the state of the case is such that on the admissions on the record, and the undisputed facts given in evidence on the trial, the onus lies on either side, the judge ought to give the direction, first, that if there are no additional facts to alter this, the jury ought to find ^ King V. Burdett,4 B. & Aid. p. 140 ( 1820 ). See also Steph. Dig. Ev. art. 96 : " In considering the amount of evidence necessary to shift the burden of proof, the court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. " Compare Best, Ev. ss. 275, 276. Bonnier, Traitfedes Preuves (4 ed. ), i. 33 : " La difficult^ de la preuve . . . n'est point un motif suffisant pour intervertir les rdles. " And again, 49 : " C'est toujours au demandeur k prouver, et qu'il peut le faire, m^me lorsqu'il s'agit d'un fait negatif ; il lepourra bien plusfacilement si on admet cettesage restriction que, pour rendre la negative d6finie, il est permis d'obliger lapartie adverse a pr^ciser ses pretentions. " The sound com- mon-law doctrine, together with a reference to statutes that change it, is found in "Wilson V. Melvin, 13 Gray, 73, and Com. v. Lahy, 8 Gray, 459. The question arising under the English Game Laws was afterwards regulated by statute. ( i Tayl. Ev., 8 ed., s. 377, note). Suchstatutes, exempting a party from the duty of giving evidence in certain cases, or imposing the " burden of proof " on the other, are common enough both here and in England. They might easily give rise to questions of construction as to the meaning of the phrase now under discussion. In dealing with one of these statutes ( which had not, however, used the very phrase), it was said by the court in Mugler z/, Kansas, 1 23 U. S. p. 674, that it simply determined what was 21. prima facie case for the government.
- Dublin, etc. Ry. Co. v. Slattery, 3 App. Cas. 11 55.
