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The value of analogy, therefore, depends upon the degree of its approximation to identity. To ensure a reasonable degree, two practical rules should be observed:

a. Discover as many points of resemblance as possible.

b. Examine closely the points of difference and show that they are accidental, i. e., not essential to the present question.

These rules are easy to formulate, but they are not easy to apply. History and politics are full of examples of false analogy, due to the violation of a or b; sometimes, of both. That is, the reasoner does not get together enough points of resemblance, or he overlooks points of serious difference. E. g., it is poor reasoning to infer that, because the body suffers when the heart is enlarged, therefore a nation is enfeebled when the capital city increases rapidly in population. The resemblance between the heart and the city is too slight, too fanciful. It is also false analogy to argue that an absolute government is the best, by comparing it to the control that a father exercises over his children. The weakness lies in overlooking two points of difference: the one, that when we think of a father we really mean a good and wise father, whereas an absolute ruler may be neither good nor wise; the second, that men are not children.

Another weak argument, but much less obvious, is this. To increase the quantity of wheat, coal, iron, etc. in a given community, is to increase the productive capacity of the community; therefore, to double the amount of gold and silver in circulation is to increase the productive capacity. The argument overlooks at least one fundamental difference between coal and gold. Coal is of service only as it is consumed; the more of it consumed, the greater good to the consumer and to the community. But gold is not consumed; it merely circulates from hand to hand. Increasing the amount circulated does not increase

the production of other articles, but merely lowers the standard by which they are priced.

On the other hand, the argument advanced by Lord Chatham for removing the English troops from America, 1775, is sound:

This resistance to your arbitrary system of taxation might have been foreseen. It was obvious from the nature of things, and of mankind; and, above all, from the Whiggish spirit flourishing in that country. The spirit which now resists your taxation is the same which formerly opposed loans, benevolences, and ship-money in England; the same spirit which called all England "on its legs," and by the Bill of Rights vindicated the English Constitution; the same spirit which established the great, fundamental, essential maxim of your liberties, that no subject of England should be taxed but by his own consent.

The points of resemblance were unmistakable: similarity of character between the Americans and the English, based upon descent; similarity between the attempts of Charles I. and George III. to extract money by taxation without the consent of the taxed, voted by their representatives; similarity in the form and methods of resistance in 1642 and 1775.

ARGUMENTATION IN LAW.

72. Argumentation in law-proceedings is merely a special variety of analogy. It consists in applying an old and well-established definition to a new case, or in applying to a new case the principle involved in former cases. Definition.-See § 49. Many legal rights, obligations, and relations have been defined by the law of England and the United States, sometimes by a statute, more often by a series of decisions rendered by the courts in early times. Even where a definition is embodied in a statute, examination frequently shows that the statute has copied or imitated closely some old decision of the courts. Certain of these definitions are so precise as to admit of rigorous logical deduction. Especially is this true in the law of real property. Such terms as "estate," "heir," "heir

of the body," "fee simple," "remainder," are applied by the courts with almost mathematical precision. In criminal law also many offences have been defined most precisely by statute, such as arson, counterfeiting, burglary, and the like.

An instance of the application of an ancient definition is to be found in the well-known trial of Lord Gordon for treason, see § 70. Lord Gordon had assembled an immense multitude in St. George's Fields, London, to proceed thence to the Parliament House with a petition for the repeal of a bill in favor of the Catholics. The petition was presented to the House of Lords by Lord Gordon as member, and was rejected. The multitude thereupon became disorderly, and, being instigated by professional criminals, attacked and destroyed several Catholic chapels. Things grew rapidly worse, for several days London was in possession of the mob, until the riot was put down by soldiers called in from various military posts.

Lord Gordon was arraigned for high treason, and defended by Mr. Kenyon and Mr. Erskine. The prosecution contended that any attempt to coerce the legislature by numbers and violence was high treason. This was not disputed. Also that Lord Gordon's overt acts might fairly be construed as such an attempt. It was upon this second point that the case really turned. It was proved by many witnesses that Lord Gordon's acts and language had always been peaceable, that he had entreated the multitude, after presenting the petition, to disperse to their homes. Erskine, citing the definition of treason given in the statute of Edward III., as consisting either in an attempt to compass the death of the king or in levying war against him in his realm, showed that premeditated open acts of violence, hostility, and force were essential to the idea of levying war, as held by previous decisions. Therefore, since the accused had never advocated nor intended violence, on the contrary, had urged only peaceful measures, his acts could

not possibly be construed into treason. And so the jury decided in their verdict.

73. Case-Law. The larger part of adjudication, especially in civil trials, consists in following the method technically known as case-law. The method is one of Analogy, $71. E. g., a dispute arises between A. and B. about the ownership of certain property. When the facts have been ascertained by Testimony (see $70), the next step is to get together several cases, already decided, in which the state of facts is similar. From these cases a general principle is elicited, running through them all and determining them all. This principle is then applied to the new case in question.

The theory is simple. But to apply it one must have a mind legally trained. There is usually danger of overlooking some fact essential to the analogy. The previous cases may rest, let us say, upon five essential facts, of which only four are found in the present case. Or, contrariwise, the previous cases may rest upon only four facts, while the present case may embody a fifth fact which gives it a different character. Only a legally trained mind is able to perceive clearly what facts are essential.

Apart from facts, the untrained mind has the greatest difficulty in detecting the general legal principle underlying a number of cases which are only similar, and not identical. The superficial and minor points of difference are bewildering.

In conclusion it may be said that as Induction and Deduction in science rest upon the assumption (which is not an axiom, see § 69) that nature works with unvarying uniformity, so the administration of justice rests upon the assumption that courts shall decide uniformly. That is, a legal principle, once adopted and applied in a number of cases, shall be applied to all new cases offering a similar state of facts. The assumption is expressed in the phrase stare decisis, "abide by things decided."

SOME SPECIAL TERMS.

74. A few special terms used in argumentative writing call for explanation:

1. A priori; a posteriori.-By the former of these terms is meant reasoning from general to particular (antecedent probability), see § 67. E. g., seeing the barometer fall, we infer atmospheric disturbance, and from this we conjecture a probable rain-storm. From the well-known disposition of a man we conjecture that he may have committed a certain offence. Frequently a priori is applied as a term of reproach to a would-be argument which assumes a general rule without attempting to verify it, and then applies it to a particular case. An example is the popular catchword, "The State had better leave things alone," see § 53. A posteriori is substantially reasoning from particular to general.

2. A fortiori designates an argument which shows that the case in question is stronger or more probable than one already conceded to be sufficiently so. E. g., "If a man say, I love God, and hateth his brother, he is a liar: for he that loveth not his brother whom he hath seen, how can he love God whom he hath not seen." 1 John iv. 20.

In substance the argument is one of analogy, the application of a general principle.

3. Dilemma. This consists in showing that a proposition has only two sides, each of which is untenable. E. g., Burke, in attacking the (now abolished) imprisonment for debt in the discretion of the creditor, argues thus: If insolvency is not a crime, why punish it at all with imprisonment; if it is a crime, why leave the punishment to the judgment of an irresponsible citizen, the creditor? Thrown into the form of a Syllogism (§ 75, 2), the argument would be Insolvency is either a crime or not a crime. If it is a crime, it should not be punished by the creditor. If it is not a crime, it should not be punished at all.

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