So with other questions of policy, the burden of proof would be on any one who proposed a change from a policy long established, such as free trade in England, and to a less extent protection in this country, the elective system in many American colleges, the amateur rule in school and college athletics.
Always, one must remember that the burden of proof depends on the prepossessions of the audience, and that on the same question it may change within a moderately small number of years. Ten years ago, on the question of the popular election of senators the burden was clearly on the side of those who advocated a change in the Constitution. By this time (1912) the burden of proof has for a majority of the people of the United States probably swung to the other side. In the state of Maine, where prohibition had been embodied in the state constitution for a generation, the burden of proof was on those who in 1911 argued for its repeal; whereas in Massachusetts, which has done well for many years with local option and high license, the burden would still be on those who should argue for state prohibition. In the discussions of the game of football a few years ago the burden of proof before an audience of athletes would have been on those who declared that the game must be changed; with college faculties and men of like mind the burden of proof would have been on those who defended the old game. In each case that comes up, you cannot place the burden of proof until you know whether the people you are trying to convince have any prepossessions in the matter: if they have, the burden of proof is on him who attempts to change those prepossessions; if they have not, the burden is on him who is proposing to change existing views or existing policies.
In no case, however, with a popular audience is it very safe to depend much on the burden of proof; almost always it is better to jump in and actively build up the argument on your own side. In argument, as in strategy, take the offensive whenever you can.
Notebook. Note whether the burden of proof is with you or against you, taking into account the probable prepossessions of the audience you have selected.
Illustration. In the argument for the introduction of the commission form of government into Wytown the burden of proof is on the affirmative to show that the Des Moines plan of city government will cure the evils of the present government of Wytown. With the audience assumed (see p. 43), there is no burden of proof on the affirmative to establish the need of a change.
EXERCISES
1. In three subjects which you might choose for an argument show where the burden of proof would lie.
2. In the case of one of these arguments show how the burden of proof might change with the argument.
17. The Brief. When you have settled these preliminary questions of the audience you wish to win over to your view, and of the way their prepossessions and knowledge of the subject will affect your responsibilities for the burden of proof, you are ready to begin work on the brief, as the plan for an argument is called. This brief it is better to think of as a statement of the logical framework of the argument, which you are constructing for the purpose of clearing up your own mind on the subject, and especially to help you to see how you can most effectively arrange your material. It differs from the usual brief in a case at law in that the latter is ordinarily a series of compact statements of legal principles, each supported by a list of cases already decided which bear on that principle. The brief you will be making now will consist of an introduction, which states whatever facts and principles are necessary to an understanding of the brief, and the brief itself, which consists of a series of propositions, each supporting your main contention, and each in turn supported by others, which again may each be supported by another series. Such an analysis will thoroughly display the processes of your reasoning, and enable you to criticize them step by step for soundness and coerciveness.
I shall first explain the several steps which go to the making of the introduction to the brief; and then come to the making of the brief itself.