§5.7.1Maximus tamen patronis circa testimonia sudor est.
However, the greatest labor for advocates is concerning testimonies.
ea dicuntur aut per tabulas aut a praesentibus.
They are delivered either in writing or by those who are present.
simplicior contra tabulas pugna. nam et minus obstitisse videtur pudor inter paucos signatores, et pro diffidentia premitur absentia.
The fight against written documents is simpler; for shame seems to have offered less of an obstacle among a small number of signers, and absence is weighed down as a sign of lack of confidence.
si reprehensionem non capit ipsa persona, infamare signatores licet.
If the person himself does not admit of censure, it is permitted to defame the signers.
§5.7.2tacita praeterea quaedam cogitatio refragatur his omnibus, quod nemo per tabulas dat testimonium nisi sua voluntate; quo ipso non esse amicum ei se, contra quem dicit, fatetur.
Moreover, a certain tacit thought opposes all these things, because no one gives testimony in writing except of his own free will; by which very fact he confesses that he is not a friend to him against whom he speaks.
neque tamen protinus cesserit orator, quo minus et amicus pro amico et inimicus contra inimicum possit verum, si integra sit ei fides, dicere.
Nor, however, should the orator immediately yield, so as not to admit that both a friend can speak the truth for a friend, and an enemy against an enemy, if his credibility remains unimpaired.
sed late locus uterque tractatur.
But both points are treated at large.
§5.7.3cum praesentibus vero ingens dimicatio est, ideoque velut duplici contra eos proque iis acie confligitur actionum et interrogationum.
But with those who are present, there is a huge struggle, and therefore the battle is fought with what may be called a double battle line of speeches and interrogations, both against them and for them.
in actionibus primum generaliter pro testibus atque in testes dici solet.
In the speeches, it is customary first to speak generally for witnesses and against witnesses.
et hic communis locus, §5.7.4cum pars altera nullam firmiorem probationem esse contendit, quam quae sit hominum scientia nixa; altera ad detrahendam illis fidem omnia, per quae fieri soleant falsa testimonia, enumerat.
And this is a common topic, when one party contends that there is no firmer proof than that which relies on human knowledge, while the other, to detract from their credibility, enumerates all the reasons through which false testimonies are usually made.
§5.7.5sequens ratio est cum specialiter quidem, sed tamen multos pariter invadere patroni solent.
The next method is when advocates are accustomed to attack many at once, though indeed specifically.
nam et gentium simul universarum elevata testimonia ab oratoribus scimus et tota genera testimoniorum: ut de auditionibus; non enim ipsos esse testes sed iniuratorum adferre voces; ut in causis repetundarum, qui se reo numerasse pecunias iurant, litigatorum non testium habendos loco.
For we know both that the testimonies of entire nations have been made light of at once by orators, and whole classes of testimonies: as concerning hearsay; for they are not themselves witnesses but bring the voices of unsworn persons; as in cases of extortion, those who swear that they paid money to the defendant are to be held in the place of litigants, not of witnesses.
§5.7.6interim adversus singulos dirigitur actio; quod insectationis genus et permixtum defensioni legimus in orationibus plurimis et separatim editum, sicut in Vatinium testem.
Sometimes, the speech is directed against individuals; which kind of attack we read both mixed with the defense in very many speeches, and published separately, as against the witness Vatinius.
§5.7.7totum igitur excutiamus locum, quando universam institutionem aggressi sumus.
Let us therefore examine this whole topic, since we have undertaken a complete instruction.
sufficiebant alioqui libri duo a Domitio Afro in hanc rem compositi, quem adolescentulus senem colui, ut non lecta mili tantum ea, sed pleraque ex ipso sint cognita.
Otherwise, the two books composed on this matter by Domitius Afer would have been sufficient, whom I, as a young man, courted in his old age, so that these things were not only read by me, but most of them were learned from him himself.
is verissime praecepit primum esse in hac parte officium oratoris, ut totam causam familiariter norit; quod sine dubio ad omnia pertinet.
He most truly taught that the first duty of the orator in this part is to know the whole case intimately; which without doubt pertains to all things.
§5.7.8id quomodo contingat, explicabimus, cum ad destinatum huic parti locum venerimus.
How that may be achieved we will explain when we come to the place destined for this part.
ea res suggeret materiam interrogationi et veluti tela ad manum subministrabit; eadem docebit, ad quae iudicis animus actione sit praeparandus.
That matter will suggest material for interrogation and will supply, as it were, weapons to the hand; the same will teach for what things the judge’s mind must be prepared by the speech.
debet enim vel fieri vel detrahi testibus fides oratione perpetua, quia sic quisque dictis movetur, ut est ad credendum vel non credendum ante formatus.
For credibility must either be built up or detracted from witnesses by a continuous speech, because everyone is moved by what is said in proportion to how he has been previously shaped to believe or not to believe.
§5.7.9et quoniam duo genera sunt testium, aut voluntariorum aut eorum, quibus in iudiciis publicis lege denuntiari solet, quorum altero pars utraque utitur, alterum accusatoribus tantum concessum est, separemus officium dantis testes et refellentis.
And since there are two classes of witnesses, either voluntary or those who are accustomed to be summoned by law in public trials, of which the former both parties use, while the latter is granted only to prosecutors, let us separate the duty of the one who produces witnesses and of the one who refutes them.
§5.7.10qui voluntarium producit, scire quid is dicturus sit potest; ideoque faciliorem videtur in rogando habere rationem.
He who produces a voluntary witness can know what he is going to say; and therefore he seems to have an easier method in questioning.
sed haec quoque pars acumen ac vigilantiam poscit, providendumque, ne timidus, ne inconstans, §5.7.11ne imprudens testis sit; turbantur enim et a patronis diversae partis inducuntur in laqueos et plus deprehensi nocent quam firmi et interriti profuissent.
But this part also demands acumen and vigilance, and care must be taken lest the witness be timid, inconsistent, or imprudent; for they are thrown into confusion and led into snares by the advocates of the opposite party, and when caught they do more harm than they would have done good if they had been firm and intrepid.
multum igitur domi ante versandi, variis percontationibus, quales haberi ab adversario possint, explorandi sunt.
They must therefore be well practiced at home beforehand, and explored with various questionings of the kind that might be held by the adversary.
sic fit, ut aut constent sibi aut, si quid titubaverint, opportuna rursus eius a quo producti sunt interrogatione velut in gradum reponantur. in iis quoque adhuc,
Thus it happens that they either remain consistent with themselves, or, if they falter in any way, they are restored as it were to their footing by a timely interrogation from the one by whom they were produced.
§5.7.12qui constiterint sibi, vitandae insidiae; nam frequenter subiici ab adversario solent et omnia profutura polliciti diversa respondent et auctoritatem habent non arguentium illa, sed confitentium.
Even among those, who have remained consistent with themselves, snares must be avoided; for they are frequently sent in by the adversary, and having promised all things that would be helpful, they answer differently, and they carry the authority not of those who are being refuted, but of those who are confessing.
§5.7.13explorandum igitur, quas causas laedendi adversarium adferant; nec id sat est inimicos fuisse, sed an desierint, an per hoc ipsum reconciliari velint, ne corrupti sint, ne paenitentia propositum mutaverint.
We must therefore explore what reasons they bring for harming the adversary; nor is it enough that they have been enemies, but whether they have ceased to be so, or whether they wish to be reconciled through this very act, or lest they have been bribed, or lest having repented they have changed their purpose.
quod cum in iis quoque, qui ea, quae dicturi videntur, re vera sciunt, necessarium est praecavere; multo magis in iis, qui se dicturos, quae falsa sunt, pollicentur.
While this precaution is necessary even in the case of those who really know what they seem about to say, it is much more so in the case of those who promise that they will say things that are false.
§5.7.14nam et frequentior eorum paenitentia est et promissum suspectius et, si perseverarint, reprehensio facilior.
For their repentance is more frequent, their promise more suspicious, and, if they persevere, their refutation is easier.