THE BURDEN OF PROOF, 59 simple, but often, in fact, it is not. It is far from being a mere question of the form in which a party phrases his claim or his defence, whether that be affirmative or negative. The general question might be answered on various principles. It might turn on the mere form of the pleadings, and in some instances it does.^ In civil cases, and, in some jurisdictions, in criminal cases, mat- ters are often in no such simple condition. " Undoubtedly," says Mr. Justice Holmes, " many matters which, if true, would show that the plaintiff never had a cause of action, or even that he never had a valid contract, must be pleaded and proved by the defendant ; for instance, infancy, coverture, or, probably, illegality. Where the line should be drawn might differ, conceivably, in different jurisdictions." (Starratt z/. Mullen, 148 Mass. p. 571.) In gen- eral, the considerations of detail which affect this matter are those of precedent and of mere practical convenience, tempered by logic. Whatever they be, it is not my purpose to deal with them ; it is, as I have indicated before, too large a matter. If there were space, I should insert here the substance of Professor Langdell's very valuable statement upon this subject ;2 but as there is not, I beg to commend it to the perusal of the reader. Bentham recog- nized the difficulties attending this subject, and offered as his chief and indispensable remedy "the restoration of that feature of primitive justice, — confrontation of the parties at the outset coram jiidice^] and the application of the maxim that he should have the burden " on whom it would sit lightest," i.e.^ who could fulfil the requirements with the least "vexation, delay, and ex- pense." ^ (4.) But now, keeping all this in mind, it is very important to remark certain sources of ambiguity. {a.) He who has to move the court and establish his case, has also, as we see, to go forward with the proof of it ; the other may rest until then, and will win without a stroke if the first remain idle. This duty is generally given as the distinctive test of an affirmative case, — " Which party would be successful if no evi- dence at all were given."* But when the actor has gone forward and made his prima facie case, he has brought a pressure to bear ^ See Professor McClain's valuable article on "The Burden of Proof in Criminal Prose- cutions/' 17 Am. Law Review, 892.
- Equity Pleading (2 ed.), ss. 108 etseq. See also Pomeroy, Remedies, c. 4.
- Bentham^ Works, vi. 139, 136. * Amos v, Hughes, i Moo. & Rob. 464.
