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.
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