8.  Arguments of Fact.  Among the commonest and most important varieties of arguments of fact are those made before juries in courts of law.  It is a fundamental principle of the common law under which we live that questions of fact shall be decided by twelve men chosen by lot from the community, and that questions of the law that shall be applied to these facts shall be decided by the judges.  Accordingly in criminal trials the facts concerning the crime and the actions and whereabouts of the accused are subjects of argument by the counsel.  If the prisoner is attempting to establish an alibi, and the evidence is meager or conflicting, his counsel and the prosecuting officer must each make arguments before the jury on the real meaning of the evidence.  In civil cases likewise, all disputed questions of fact go ordinarily to a jury, and are the subject of arguments by the opposing lawyers.  Did the defendant guarantee the goods he sold the plaintiff?  Was undue influence exerted on the testator?  Did the accident happen through the negligence of the railroad officials?  In such cases and the countless others that congest the lists of the lower courts arguments of fact must be made.

Other common arguments of fact are those in historical questions, whether in recent or in ancient history.  Macaulay’s admirable skeleton argument (p. 155) that Philip Francis wrote the Junius Letters, which so grievously incensed the English government about the time of the American Revolution, is an example of an argument of this sort; the part of Lincoln’s Cooper Institute Address which deals with the views of the founders of the nation on the subject of the control of slavery in the territories is another.  Another question concerning facts is that which a few years ago stirred classical archaeologists, whether the Greek theater had a raised stage or not.  In all such cases the question is as to facts which at one time, at any rate, could have been settled absolutely.  The reason why an argument about them becomes necessary is that the evidence which could finally settle the questions has disappeared with the persons who possessed it, or has been dissipated by time.  Students of history and literature have to deal with many such questions of fact.

A somewhat different kind of question of fact, and one often extremely difficult to settle, is that which concerns not a single, uncomplicated fact, but a broad condition of affairs.  Examples of such questions are whether woman suffrage has improved political conditions in Colorado and other states, whether the introduction of manual training in a certain high school has improved the intelligence and serviceableness of its graduates, whether political corruption is decreasing in American cities.  The difficulty that faces an argument in such cases as these is not the loss of the evidence, but rather that it consists of a multitude of little facts, and that the selection of these details is singularly subject to bias and partisan feeling.  These questions of a broad state of affairs are like questions of policy in that in the end their settlement depends thus largely on temperamental and practical prepossessions.