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CHAPTER FOURTEEN THE AUTHORITY OF ANALOGY During his examination before the House of Commons in 1766, Benjamin Franklin was asked whether Americans were acquainted with the English Bill of Rights and if they knew "that, by that statute, money is not to be raised on the subject but by consent of parliament." "They understand that clause to relate to subjects only within the realm," Franklin answered. "The Colonies are not supposed to be within the realm ... and they are in that respect in the same situation with Ireland. When money is to be raised for the Crown upon the subject in Ireland, or in the Colonies, the consent is given in the parliament of Ireland, or in the assemblies of the Colonies...."1 It is the method of Franklin's argument that deserves attention. He utilized an authority of law that was related to, but should not be confused with, the doctrine of precedent: the principle of analogy. The use of analogy to establish propositions under the eighteenth-century British constitution generally took one of two forms, proof by past analogy and proof by current analogy, with the former further divided by analogies drawn from ancient history and analogies drawn from English or British history. Ancient analogies were quite common. It was fashionable for writers when commenting on the North American colonies to draw comparisons 147 THE AUTHORITY OF ANALOGY with colonies of other times and nations, particularly ancient Greece and Rome. This technique, however, was largely irrelevant to the constitutional controversy as participants on both sides well knew. "The reasoning about the colonies of Great Britain, drawn from the colonies of antiquity," Lord Mansfield pointed out, "is a mere useless display of learning; for, the colonies of the Tyrians in Africa, and of the Greeks in Asia, were totally different from our system." American whigs agreed. "The form of the British government, and the nature of our connection with it," William Hicks observed, "are so essentially different from every colonization with which we are acquainted, that we cannot be directed by precedents drawn from any former establishment."2 Past analogies drawn from English or British history were a different matter. They could be argued as authority when shown to be on point. "If the king is to take at his pleasure, what have we to give?" James Burgh asked, noting that that question "was the common argument against Ch[arles] 1st's raising money without consent of parliament; and may, with equal propriety, be used by our colonists against their being taxed by the British parliament, in which they have no representation." What Burgh meant by the colonists "using" the opposition to Charles I was that such history was relevant as a legal analogy. The passage of time and the changed circumstances may have weakened the persuasiveness of the analogy as a historical analogy, but such considerations had much less weight in legal reasoning. Burgh's analogy was a valid legal analogy because American whigs were raising the same constitutional issue, taxation without consent, that the opponents of Charles I had raised.3 Current analogy had fewer similarities to precedent than did past analogy. More truly an appeal to analogy per se, it was premised on the principle that a constitutional privilege enjoyed by one part of the Empire should be enjoyed by the other equal and comparable or analogous parts. "[T]here has not been," Caleb Evans wrote in a typical instance of the technique, "one argument yet brought, to prove the right of the English parliament to tax the Americans, but would equally serve to prove their right to tax the Irish, or the right of the King to tax us all, without asking the representatives of the people any thing about the matter." Besides Ireland, current analogies supporting the American constitutional case of immunity from parliamentary taxation for purposes of revenue included the Isle of Man, Guernsey, Jersey, and even the mother country. The last may seem at first glance to be a past, not a current analogy. It was, however, a current analogy to James Burgh, who, if attention is paid to the next quotation, will be seen to have appealed not to past analogy but to what was for him a current analogy: Great Britain. THE AUTHORITY OF ANALOGY Magna Carta, and the Bill of Rights, prohibit the taxing of the mothercountry by prerogative, and without consent of those who are to be taxed. If the people of Britain are not to be taxed...

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