Pro Fonteio

---But the Gauls deny this. But the circumstances of the case and the force of arguments prove it. Can then a judge refuse belief to witnesses? He not only can, but he ought, if they are covetous men, or angry men, or conspirators, or men utterly void of religion and conscience. In fact, if Marcus Fonteius is to be considered guilty just because the Gauls say so, what need have I of a wise judge? what need have I of an impartial judge? what need is there of an intelligent advocate? For the Gauls say so. We cannot deny it. If you think this is the duty of an able and experienced and impartial judge, that he must without the slightest hesitation believe a thing because the witnesses say it; then the Goddess of Safety herself cannot protect the innocence of brave men. But if, in coming to a decision on such matters, the wisdom of the judge has a wide field for its exercise in considering every circumstance, and in weighing each according to its importance, then in truth your part in considering the case is a more important and serious one than mine is in stating it.

For I have only to question the witness as to each circumstance once, and that, too, briefly, and often indeed I have not to question him at all; lest I should seem to be giving an angry man an opportunity of making a speech, or to be attributing an undue weight to a covetous man. You can revolve the same matter over and over again in your minds, you can give a long consideration to the evidence of one witness; and, if we have shown an unwillingness to examine any witness, you are bound to consider what has been our reason for keeping silence. Wherefore; if you think that to believe the witnesses implicitly is enjoined to a judge, either by the law or by his duty, there is no reason at all why one man should be thought a better or a wiser judge than another. For judgment formed by the mere ears is single and simple enough; it is a power given promiscuously to all in common, whether they are fools or wise men.

What, then, are the opportunities which wisdom has of distinguishing itself? When can a foolish and credulous auditor be distinguished from a scrupulous and discerning judge? When, forsooth, the statements which are made by the witnesses are committed to his conjectures, to his opinion, as to the authority, the impartiality of mind, the modesty; the good faith, the scrupulousness, the regard for a fair reputation, the care, and the fear with which they are made. Or will you, in the case of the testimonies of barbarians, hesitate to do what very often within our recollection and that of our fathers, the wisest judges have not thought that they ought to hesitate to do with respect to the most illustrious men of our state? For they refused belief to the evidence of Cnaeus and Quintus Caepio, and to Lucius and Quintus Metellus, when they were witnesses against Quintus Pompeius, a new man; for virtuous, and noble, and valiant as they were, still the suspicion of some private object to be gamed, and some private grudge to be gratified, detracted from their credibility and authority as witnesses.

Have we seen any man, can we with truth speak of any man, as having been equal in wisdom, in dignity, in consistency, in all other virtues, in all the distinguishing qualities of honour, and genius, and splendid achievements, to Marcus Aemilius Scaurus? And yet, though, when he was not on his oath, almost the whole world was governed by his nod, yet, when he was on his oath, his evidence was not believed against Caius Fimbria, nor against Caius Memmius. They, who were the judges, were unwilling that such a road should be opened to enmities, as for every man to be able to destroy by his evidence who ever he hated. Who is there who does not know how great was the modesty, how great the abilities, how great the influence of Lucius Crassus? And yet he, whose mere conversation had the authority of evidence, could not, by his actual evidence, establish the things which he had stated against Marcus Marcellus with hostile feelings.