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Book 7 - Chapter 8
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Of syllogism; intimately connected with definition, § 1, 2. Determines by inference what is uncertain in the letter of any writing, 3-6. Or even what is not expressed in the writing, 7.
1. THE state called syllogism has some resemblance to that of letter and intention, inasmuch as one party, under it, always takes its stand on the letter; but there is this difference, that in the state of letter and intention, arguments are brought against the letter, in that of syllogism the meaning is carried beyond the letter; in the former, he who adheres to the letter, makes it his object that at least what is written may be carried into effect; in the latter, that nothing may be done besides what is written. Syllogism has also some affinity to definition; for if syllogism be weak, it often has recourse to definition. 2. For suppose that there be this law: Let a woman who administers poison be put to death. And this case: A woman several times gave a philtre to her husband who had neglected her; afterwards she procured a divorce from him; being solicited by her relatives to return to him, she did not return; the husband hanged himself; the woman is accused of poisoning. The strongest argument of the accuser will be to say that a philtre is poison; this will be a definition; but if it fail to produce sufficient effect, the syllogism will be attempted, (to which he may proceed, giving up, as it were, the definition,) to decide whether she does not deserve to be punished as much as if she had actually poisoned her husband.
3. The state of syllogism, therefore, deduces from that which is written that which is uncertain; and, as this is collected by reasoning, it is called the ratiocinatory state. The following are the points which it mostly embraces: Whether what is lawful to be done once, is lawful to be done more than once: A woman found guilty of incest, and precipitated from the Tarpeian rock, is found alive; she is required to undergo the punishment a second time. Whether what the law grants with regard to one person or thing, it grants with regard to several: A man who has killed two tyrants at once, claims two rewards. Whether what was lawful before a certain time, was also lawful after it: A woman is forcibly violated; the ravisher flees; the woman is married, and, on his return, demands her option. Whether what is forbidden with regard to the whole, is forbidden with regard to part: It is not lawful to receive a plough in pledge; a man received a ploughshare. Whether what is forbidden with regard to part, is forbidden with regard to the whole: It is not lawful to export wool from Tarentum; a person exported sheep. 5. In these cases of syllogism the one party rests on the letter; the other alleges that no provision is made in the law against the act in question. "I demand," says the accuser, "that the woman guilty of incest be thrown headlong from the rock; for such is the law." On the same ground the woman who has been forcibly violated claims her option; and "in exporting sheep," it is said, "wool is exported;" and it is the same with other cases. 6. But it may be replied, "It is not written in the law that a woman condemned should be twice thrown headlong; that a woman forcibly violated should have her option whenever she pleases; that a tyannicide should receive two rewards; that there is no provision in the law about a ploughshare, or about sheep;" and what is doubtful is then to be collected from what is certain. To deduce from what is written that which is not written, is a matter of greater difficulty: Let him who has killed his father be sewn in a sack; a man kills his mother. Let it be unlawful to drag a man from his house to the judgment-seat; A man drags another from his tent. 7. In such cases, the questions are, whether, when there is not a particular law for a case, we must have recourse to a similar law; and whether the matter in question is similar to that to which the letter of the law refers.
But what is similar may be either greater, or equal, or less. In the first case, we inquire whether sufficient provision has been made with regard to the matter in question in the law to which we refer it, and whether, if sufficient provision has not been made, we ought to apply that law to it. In the two other cases, we inquire concerning the intention of the legislator. But arguments founded on equity are the strongest.
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