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be done, then which of them appears more equitable. Also whether one be positive, and the other negative; because prohibitions are a sort of exceptions to positive injunctions. Or if one be a general law,—and the other more particular, and come nearer to the matter in question. Likewise which was last made: since former laws are often abrogated, either wholly or in part, by subsequent laws; or at least were designed to be so. Lastly, it may be observed, whether one of the laws be not plain and express, and the other more dubious, or has any ambiguity in it. All or any of which things that party will not omit to improve for his advantage, whose interest is concerned in it. · The fourth controversy is Reasoning: as when something not expressly provided for by a law is inferred by similitude, or parity of reason, from what is contained in it. Quintilian mentions this instance of it: There was a laro made at Tarentum to prohibit the exportation of wool, but a certain person exports sheep. In this case the prosecutor may first compare the thing, which occasions the charge, with the words of the law, and show their agreement, and how unnecessary it was that particular thing should have been expressly mentioned in the law, since it is plainly contained in it, or at least an evident consequence from it. He may then plead that many things of a like nature are omitted in other laws for the same reason: and, lastly, he may urge the reasonableness.' and equity of the procedure. The defendant on the other hand will endeavour to show the deficiency of the reasoning, and the difference between the two cases. He will insist upon the plain and
express words of the law, and set forth the ill tendency of such inferences, and conclusions drawn from similitudes and comparisons; since there is scarce any thing but in some respect may bear a resemblance to another.
The last controversy under this head is Interpretation, in which the dispute turns upon the true meaning and explication of the law, in reference to that particular case. We have the following instance of this in the Pandects: A man who had two sons, both under age, substitutes Titius as heir to him who should die last, provided both of them died in their minority. They both perish together at sea, before they came to age. Here arises a doubt, whether the substitution can take place, or the inheritance devolves to the heir at law. The latter pleads, that as neither of them can be said to have died last, the substitution cannot take place, which was suspended upon the condition, that one died after the other. But to this it may be said, it was the intention of the testator, that, if both died in their nonage, Titius should succeed to the inheritance; and therefore it makes no difference whether they died together, or one after the other; and so the law determines it.
The second head of external arguments are Witnesses. These may either give their evidence, when absent, in writing subscribed with their name; or present, by word of mouth. And what both of them testify, may either be from hear-say, or what they saw themselves, and were present at the time it was done. As the weight of the evidence may be thought greater or less on each of these accounts, either party will make such use of it as he finds for his ad. vantage. The characters of the witnesses are also to be considered; and if any thing be found in their lives or behaviour that is justly exceptionable to invalidate their evidence, it ought not to be omitted. And how they are affected to the contending parties, or either of them, may deserve consideration ; for some allowances may be judged reasonable in case of friendship, or enmity, where there is no room for any other exception. But regard should chiefly be had to what they testify, and how far the cause is affected by it. Cicero is very large upon most of these heads in his defence of Marcus Fonteius, with a design to weaken the evidence of the Gauls against him. And where witnesses are produced on one side only, `as orators sometimes attempt to lesson the credit of this kind of proof, by pleading that witnesses are liable to be corrupted or biassed by some prevailing interest or passion to which arguments taken from the nature and circumstances of things are not subject, it may be answered on the other hand, that sophistical arguments, and false colourings, are not exposed to infamy or punishment, whereas witnesses are restrained by shame and penalties, nor would the law require them if they were not necessary.
The third and last head of external arguments are Contracts, which may be either public or private. By public are meant the transactions between different states, as leagues, alliances, and the like; which depend on the laws of nations, and come more properly under deliberative discourses, to which I shall refer them, Those are called private which relate to lesser bodies or societies of men, and single persons ; and may be either written or verbal. And it is not so much the true meaning and purport of them, that is here considered, as their force and obligation. And as the Roman law declares, Nothing can be more agreeable to human faith than that persons should stand to their agreements,—therefore in controversies of this kind, the party whose interest it is that the contract should be maintained will plead that such covenants have the force of private laws, and ought religiously to be observed, since the common affairs of mankind are transacted in that manner; and therefore to violate them is to destroy all commerce and society among men. On the other side it may be said, that justice and equity are chiefly to be regarded, which are immutable. And besides, that the public laws are the common rule to determine such differences, which are designed to redress those who are aggrieved. And, indeed, where a compact has been obtained by force or fraud, it is in itself void, and has no effect either in law or reason. But on the other hand, the Roman lawyers seem to have very rightly determined, that all such obligations as are founded in natural equity, though not binding by national laws, and are therefore called nuda pacta, ought, however, in honour and conscience, to be performed.
Thus I have gone through the common heads of invention, both internal and external, which may be of service to an orátor, when his view is to inform his hearers, and prove the truth of what he asserts. But the particular application of them, to the several sorts of discourses he may have occassion to treat upon, I shall now proceed to explain.
Of the State of a Controversy. The ancients observing, that the principal question or point of dispute, in all controversies, might be referred to some particular head, reduced those heads to a certain number; that both the nature of the question might by that means be better known, and the arguments suited to it be discovered with greater ease. And these heads they call States.
By the State of a Controversy then we are to understand the principal point in dispute between contending parties, upon the proof of which the whole cause or controversy depends. We find it expressed by several other names in ancient writers; as, The constitution of the cause, The general head, and The chief question. And as this is the principal thing to be attended to in every such discourse, so it is what first requires the consideration of the speaker, and should be well fixed and digested in his mind before he proceeds to look for arguments proper to support it. For what can be more absurd, than for a person to attempt the proof of any thing before he has well settled in his own mind a clear and distinct notion what the thing is which he would endeavour to prove : Quintilian describes it to be, That kind of question which arises from the first conflict of causes. In judicial cases it immediately follows upon the charge of the plaintiff, and plea of the defendant. Our common law expresses it by one word, namely, the Issue: which interpreters explain, by describing it to be, That point of matter depending in suit, whereupon the pur