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Of external Topics.

THE nature and design of Common Places have been shown already; and a particular account of those which, because they are taken from the subject matter of a discourse, are therefore called internal, has likewise been given. But the orator sometimes reasons from such topics as do not arise from his subject, but from things of a different nature, and for that reason are called external. And because the former are more properly invented by him, and the effect of his art, Aristotle calls them artificial topics, and the latter inartificial. But as they both require skill in the management, Quintilian very much blames those who take no notice of these latter, but exclude them from the art of rhetoric. I propose, therefore, to make them the subject of my present discourse, and show the methods of reasoning from them. They are all taken from authorities, and are, by one general name, called Testimonies.

Now a Testimony may be expressed by writing, speech, or any other sign proper to declare a person's mind. And all testimonies may be distinguished into two sorts, divine and human. A divine testimony, when certainly known to be such, is incontestable, and admits of no debate, but should be acquiesced in without hesitation. Indeed, the ancient Greeks and Romans esteemed the pretended oracles of their deities, the answers of their augurs, and the like fallacies, divine testimonies. But with us, no one can be ignorant of their true notion, though they do not so directly come under our present consi

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deration. Human Testimonies are of various kinds; but as they furnish the orator with arguments (in which view I am now to consider them), they may be reduced to three heads; Writings, Witnesses, and Contracts.

By Writings here are to be understood written laws, wills, or other legal instruments, expressed and conveyed in that manner. And it is not so much the force and validity of such testimonies, considered in themselves, that is here intended, as the occasion of dispute which may at any time arise concerning their true design and import, when produced in proof upon either side of a controversy. And these are five; Ambiguity, Disagreement between the words and intention, Contrariety, Reasoning, and Interpretation. I shall speak to each of these in their order.

A writing is then said to be ambiguous, when it is capable of two or more senses, which makes the writer's design uncertain. Now ambiguity may arise either from single words, or the construction of sentences. From single words; as when either the sense of a word, or the application of it, is doubtful. As: should it be questioned, whether ready money ought to be included under the appellation of chattels left by a roill. Or: if a testator bequeath a certain legacy to his nephew Thomas, and he has two nephews of that name. But ambiguity is

also sometimes occasioned from the construction of a sentence; as when several things, or persons having been already mentioned, it is. doubtful to which of them that which follows ought to be referred. For example: a person writes thus in his will: Let my heir give as a legacy to Titius, an horse out of my stable, which

he please. Here it may be questioned whether the word he refers to the heir, or to Titius; and consequently, whether the heir be allowed to give Titius which horse he please, or Titius may choose which he likes best. Now as to controversies of this kind, in the first case above mentioned, the party who claims the chattels may plead, that all moveable goods come under that name, and therefore that he has a right to the money. This he will endeavour to prove from some instances where the word has been so used. The business of the opposite party is to refute this, by showing that money is not there included. And if either side produce precedents in his favour, the other may endeavour to show the cases are not parallel. As to the second case, arising from an ambiguity in the name, if any other words or expressions in the will seem to countenance either of -the claimants, he will not fail to interpret them to his advantage. So likewise if any thing said by the testator, in his life-time, or any reward shown to either of these nephews more than the other, may help to determine which of them was intended, a proper use may be made of it. And the same may be said with regard to the third case. In which the legatee may reason likewise from the common use of language, and show, that in such expressions it is unusual to make the reference to the last or next antecedent; and from thence plead, that it was the design of the testator to give him the option. But in answer to this it may be said, that allowing it to be very often so, yet in this instance it seems more easy and natural to repeat the verb give after please, and so to supply the sentence,

which he please to give him, referring it to the heir, than to bring in the verb choose, which was not in the sentence before, and so by supplying the sense, which he please to choose, to give the option to Titius. But where controversies of this kind arise from a law, recourse may be had to other laws, where the same thing has been expressed with greater clearness, which may help to determine the sense of the passage in dispute.

A second controversy from Writings is, when one party adheres to the words, and the other to what he asserts was the writer's intention. Now he who opposes the literal sense, either contends, that what he himself offers is the simple and plain meaning of the writing, or that it must be so understood in the particular case in debate. An instance of the former is this, as we find it in Cicero. A person who died without children, but left a widow, had made this provision in his will: If I have a son born to me, he shall be my heir. And a little after: If my son die, before he comes of age, let Curius be my heir. There is no son born, Curius therefore sues for the estate, and pleads the intention of the testator, who designed him for his heir if he should have no son who arrived at age; and says, there can be no reason to suppose he did not intend the same person for his heir if he had no son, as if he should have one who afterwards died in his minority. But the heir at law insists upon the words of the will, which, as he says, require that first a son should be born, and afterwards die under age, before Curius can succeed to the inheritance. And there being no son, a substituted heir, as Curius was, can have no claim

where the first heir does not exist, from whom he derives his pretension, and was to succeed by the appointment of the will. Of the latter case rhetoricians give this example: It was forbidden by a law to open the city gates in the night. A certain person, notwithstanding, in time of war did open them in the night, and let in some auxiliary troops, to prevent their being cut off by the enemy, who was posted near the town. Afterwards, when the war was over, this person is arraigned, and tried for his life on the account of this action. Now in such a case the prosecutor founds his charge upon the express words of the law; and pleads that no sufficient reason can be assigned for going contrary to the letter of it, which would be to make a new law, and not to execute one already made. The defendant on the other hand alleges, that the fact he is charged with cannot however come within the intention of the law; since he either could not, or ought not to have complied with the letter of it in that particular case, which must therefore necessarily be supposed to have been excepted in the design of that law, when it was made. But to this the prosecutor may reply; that all such exceptions, as are intended by any law, are usually expressed in it: and instances may be brought of particular exceptions expressed in some laws; and if there be any such exception in the law under debate, it should especially be mentioned. He may further add, that to admit of exceptions not expressed in the law itself, is to enervate the force of all laws by explaining them away, and in effect to render them useless. And this he may further corroborate by comparing the law under debate with

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