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an eternal brand of infamy upon him, and then he would take off the author. And this might be shown by comparison: For since he would not spare others, who had not so highly exasperated him, and from whom he had not so much to fear, certainly he would not forgive Cicero, since he knew well enough, that, so long as he lived, he himself could never be in safety. And lastly an argument might also be fetched from the nature of the thing itself in the following manner : That Cicero by this action would shamefully betray the state, and the cause of liberty, which he had, through his whole life, most courageously defended, with so great honour to himself and advantage to the public. Upon such an account a person might have used these, or the like arguments with Cicero, which arise from the forementioned heads.
From this account of common places it is easy to conceive what a large field of discourse they open to the mind upon every subject. These different considerations furnish out a great number and variety of arguments, sufficient to supply the most barren invention. He can never be at a loss for matter who considers well the nature of his subject, the parts of which it consists, the circumstances which attend it, the causes whence it springs, the effects it produces, its agreement, disagreement, or repugnancy to other things, and in like manner carries it through all the remaining heads. But although this method will assist us very much to enlarge upon a subject, and place it in different views, yet a prudent man is not so desirous to say a great deal as to speak to the purpose, and therefore will make choice of proper arguments, and such only which have a direct tendency
to confirm or illustrate his subject. And for this end it is necessary for him to gain first a thorough knowledge of his subject, and then arguments will naturally spring up in his mind proper to support it; and if he be still at a loss, and find occasion to have recourse to these heads, he will readily perceive whence to take those which are best suited to his purpose.
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 with
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 consideration. 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, Contrarietry, 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 will. 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, a horse out of my stable, which he pleases. 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 pleases, or Titius may chose 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 par ty 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 tes tator, in his life time, or any regard 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 unusal to make the reference to the last or next antecedent; 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 pleases 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 pleases 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 controvesy 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 undersood 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 inher