---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.
There was—there was in the judges of those times, O judges, a divinely-inspired and singular acuteness, as they thought that they were judges, not only of the defendant, but also of the accuser and of the witness, as to what was invented, what was brought into the case by chance or by the opportunity, what was imported into it through corruption, what was distorted by hope or by fear, what appeared to proceed from any private desire, or any private enmity. And if the judge does not embrace all these considerations in his deliberation, if he does not survey and comprehend them all in his mind,—if he thinks that whatever is said from that witness-box, proceeds from some oracle, then in truth it will be sufficient, as I have said before, for any judge to preside over this court, and to discharge this duty, who is not deaf. There will be no reason in the world for requiring any one, whoever he may be, to be either able or experienced, to qualify him for judging causes.
Had then those Roman knights, whom we ourselves have seen who have lately flourished in the republic, and in the courts, so much courage and so much vigour as to refuse belief to Marcus Scaurus when a witness; and are you afraid to disbelieve the evidence of the Volcae and of the Allobroges? If it was not right to give credence to a hostile witness, was Crassus more hostile to Marcellus, or Scaurus to Fimbria, on account of any political differences, or any domestic quarrels, than the Gauls are to Fonteius? For of the Gauls, those even who stand on the best ground have been compelled once and again, and sorely against their will, to furnish cavalry, money, and corn; and of the rest, some have been deprived of their land in ancient wars, some have been overwhelmed and subdued in war by this very man.
If those men ought not to be believed who appear to say anything covetously with a view to some private gain, I think that the Caepios and Metelli proposed to themselves a greater gain from the condemnation of Quintus Pompeius, as by that they would have got rid of a formidable adversary to all their views, than all the Gauls hoped for from the disaster of Marcus Fonteius, in which that province believed that all its safety and liberty consisted. If it is proper to have a regard to the men themselves, (a thing which in truth in the case of witnesses ought to be of the greatest weight,) is any one, the most honourable man in all Gaul to be compared, I will not say with the most honourable men of our city, but even with the meanest of Roman citizens? Does Induciomarus know what is the meaning of giving evidence? Is he affected with that awe which moves every individual among us when he is brought into that box?
Recollect, O judges, with how much pains you are accustomed to labour, considering not only what you are going to state in your evidence, but even what words you shall use, lest any word should appear to be used too moderately, or lest on the other hand any expression should appear to have escaped you from any private motive. You take pains even so to mould your countenances, that no suspicion of any private motive may be excited; that when you come forward there may be a sort of silent opinion of your modesty and scrupulousness, and that, when you leave the box, that reputation may appear to have been carefully preserved and retained.
I suppose Induciomarus, when he gave his evidence, had all these fears and all these thoughts; he, who left out of his whole evidence that most considerate word, to which we are all habituated, “I think,” a word which we use even when we are relating on our oath what we know of our own knowledge, what we ourselves have seen; and said that he knew everything he was stating. He feared, forsooth, lest he should lose any of his reputation in your eyes and in those of the Roman people; lest any such report should get abroad that Induciomarus, a man of such rank, had spoken with such partiality, with such rashness. The truth was, he did not understand that in giving his evidence there was anything which he was bound to display either to his own countrymen or to our accusers, except his voice, his countenance, and his audacity.
Do you think that those nations are influenced in giving their evidence by the sanctity of an oath, and by the fear of the immortal gods, which are so widely different from other nations in their habits and natural disposition? For other nations undertake wars in defence of their religious feelings; they wage war against the religion of every people; other nations when waging war beg for sanction and pardon from the immortal gods; they have waged war with the immortal gods themselves. These are the nations which formerly marched to such a distance from their settlements, as far as Delphi, to attack and pillage the Pythian Apollo, and the oracle of the whole world. By these same nations, so pious, so scrupulous in giving their evidence, was the Capitol besieged, and that Jupiter, under the obligations of whose name our ancestors decided that the good faith of all witnesses should be pledged.
Lastly, can anything appear holy or solemn in the eyes of those men, who, if ever they are so much influenced by any fear as to think it necessary to propitiate the immortal gods, defile their altars and temples with human victims? So that they cannot pay proper honour to religion itself without first violating it with wickedness. For who is ignorant that, to this very day, they retain that savage and barbarous custom of sacrificing men? What, therefore, do you suppose is the good faith, what the piety of those men, who think that even the immortal gods can be most easily propitiated by the wickedness and murder of men? Will you connect your own religious ideas with these witnesses? Will you think that anything is said holily or moderately by these men?
Will your minds, pure and upright as they are, bring themselves into such a state that, when all our ambassadors who for the last three years have arrived in Gaul, when all the Roman knights who have been in that province, when all the traders of that province, when, in short, all the allies and friends of the Roman people who are in Gaul, wish Marcus Fonteius to be safe, and extol him on their oaths both in public and in private, you should still prefer to give your decision in unison with the Gauls? Appealing to comply with what? With the wishes of men? Is then the wish of our enemies to have more authority in your eyes than that of our countrymen? With the dignity of the witnesses? Can you then possibly prefer strangers to people whom you know, unjust men to just ones, foreigners to countrymen, covetous men to moderate ones, mercenary men to disinterested ones, impious men to conscientious ones, men who are the greatest enemies to our dominions and to our name, to good and loyal allies and citizens?
Are you then hesitating, O judges, when all these nations have an innate hatred to and wage incessant war with the name of the Roman people? Do you think that, with their military cloaks and their breeches, they come to us in a lowly and submissive spirit, as these do, who having suffered injuries fly to us as suppliants and inferiors to beg the aid of the judges? Nothing is further from the truth. On the contrary, they are strolling in high spirits and with their heads up, all over the forum, uttering threatening expressions, and terrifying men with barbarous and ferocious language; which, in truth, I should not believe, O judges, if I had not repeatedly heard such things from the mouths of the accusers themselves in your presence,—when they warned you to take care, lest, by acquitting this man, you should excite some new Gallic war.
If, O judges, everything was wanting to Marcus Fonteius in this cause; if he appeared before the court, having passed a disgraceful youth and an infamous life, having been convicted by the evidence of virtuous men of having discharged his duties as a magistrate (in which his conduct has been under your own eye) and as a lieutenant, in a most scandalous manner, and being hated by all his acquaintances; if in his trial he were overwhelmed with the oral and documentary evidence of the Narbonnese colonists of the Roman people, of our most faithful allies the Massilians, and of all the citizens of Rome; still it would be your duty to take the greatest care, lest you should appear to be afraid of those men, and to be influenced by their threats and menaced terrors, who were so prostrate and subdued in the times of your fathers and forefathers, as to be contemptible.
But now, when no good man says a word against him, but all your citizens and allies extol him; when those men attack him who have repeatedly attacked this city and this empire; and when the enemies of Marcus Fonteius threaten you and the Roman people; when his friends and relations come to you as suppliants, will you hesitate to show not only to your own citizens, who are mainly influenced by glory and praise; but also to foreign tribes and nations, that you, in giving your votes, prefer sparing a citizen to yielding to an enemy?
Among other reasons, this, O judges, is a very great reason for his acquittal, to prevent any notable stain and disgrace from falling on our dominion, by news going to Gaul that the senate and knights of the Roman people gave their decisions in a criminal trial just as the Gauls pleased; being influenced not by their evidence, but by their threats. But in that case, if they attempt to make war upon us, we must summon up Caius Marius from the shades below, in order that he may be equal in war to that great man, that threatening and arrogant Induciomarus. Cnaeus Domitius and Quintus Maximus must be raised from the dead, that they may again subdue and crush the nation of the Allobroges and the other tribes by their arms; or, since that indeed is impossible, we must beg my friend Marcus Plaetorius to deter his new clients from making war, and to oppose by his entreaties their angry feelings and formidable violence; or, if he be not able to do so, we will ask Marcus Fabius, his junior counsel, to pacify the Allobroges, since among their tribe the name of Fabius is held in the highest honour, and induce them either to be willing to remain quiet, as defeated and conquered nations usually are, or else to make them understand that they are holding out to the Roman people not a terror of war, but a hope of triumph.
And if, even in the case of an ignoble defendant, it would not be endurable that those men should think they had effected anything by their threats, what do you think you ought to do in the case of Marcus Fonteius? concerning whom, O judges, (for I think that I am entitled to say this now, when I have almost come to the termination of two trials,) concerning whom, I say, you have not only not heard any disgraceful charge invented by his enemies, but you have not even heard any really serious reproach. Was ever any defendant, especially when he had moved in such a sphere as this man, as a candidate for honours, as an officer in command, and as a governor, accused in such a way, that no disgraceful act, no deed of violence, no baseness originating either in lust or insolence or audacity, was attributed to him, if not with truth, at least with some suspicious circumstances giving a reasonable colouring to the invention?
We know that Marcus Aemilius Scaurus, the most eminent man of our city, was accused by Marcus Brutus. The orations are extant by which it can be seen that many things are alleged against Scaurus himself, no doubt falsely; but still they were alleged against him and urged against him by an enemy. How many things were said against Manius Aquilius on his trial? How many against Lucius Cotta? and, lastly, against Publius Rutilius? who, although he was condemned, still appears to me to deserve to be reckoned among the most virtuous and innocent men. Yet that most upright and temperate man had many things attributed to him on his trial, which involved suspicion of adultery, and great licentiousness.
There is an oration extant of a man, by far (in my opinion, that is,) the ablest and most eloquent of all our countrymen, Caius Gracchus; in which oration Lucius Piso is accused of many base and wicked actions. What a man to be so accused! A man who was of such virtue and integrity, that even in those most admirable: times, when it was not possible to find a thoroughly worthless man, still he alone was called Thrifty. And when Gracchus was ordering him to be summoned before the assembly, and his lictor asked him which Piso, because there were many of the name, “You are compelling me,” says he, “to call my enemy, Thrifty.” That very man then, whom even his enemy could not point out with sufficient clearness without first praising him; whose one surname pointed not only who he was, but what sort of man he was; that very man was, nevertheless, exposed to a false and unjust accusation of disgraceful conduct.
Marcus Fonteius has been accused in two trials, in such a way, that nothing has been alleged against him from which the slightest taint of lust, or caprice, or cruelty, or audacity can be inferred. They not only have not mentioned any atrocious deed of his, but they have not even found fault with any expression used by him. But if they had either had as much courage to tell a lie, or as much ingenuity to invent one, as they feel eagerness to oppress Fonteius, or as they have displayed licence in abusing him; then he would have had no better fortune, as far as relates to not having disgraceful acts alleged against him, than those men whom I have just mentioned. You see then another Thrifty,—a thrifty man, I say, O judges, and a man moderate and temperate in every particular of his life; a man full of modesty, full of a sense of duty, full of religion, depending on your good faith and power, and placed in your power in such a way as to be committed wholly to the protection of your good faith.