Section XXXVIII.

[a] The rule for allowing a limited space of time for the hearing of causes, the extent of which could not be known, began, as Pliny the younger informs us, under the emperors, and was fully established for the reasons which he gives.  The custom, he says, of allowing two water-glasses (i.e. two hour-glasses) or only one, and sometimes half a one, prevailed, because the advocates grew tired before the business was explained, and the judges were ready to decide before they understood the question.  Pliny, with some indignation, asks, Are we wiser than our ancestors? are the laws more just at present?  Our ancestors allowed many hours, many days, and many adjournments, in every cause; and for my part, as often as I sit in judgement, I allow as much time as the advocate requires; for would it not be rashness to guess what space of time is necessary in a cause which has not been opened?  But some unnecessary things may be said; and is it not better, that what is unnecessary should be spoken, than that what is necessary should be omitted?  And who can tell what is necessary, till he has heard?  Patience in a judge ought to be considered as one of the chief branches of his duty, as it certainly is of justice.  See Plin. b. vi. ep. 2.  In England, there is no danger of arbitrary rules, to gratify the impatience of the court, or to stifle justice.  The province of juries, since the late declaratory act in the case of libels, is now better understood; and every judge is taught, that a cause is tried before him, not BY HIM.  It is his to expound the law, and wait, with temper, for the verdict of those whom the constitution has intrusted.

[b] Pompey’s third consulship was A.U.C. 702; before Christ, 52.  He was at first sole consul, and in six or seven months Metellus Scipio became his colleague.

[c] The centumviri, as mentioned s. vii. note [c], were a body of men composed of three out of every tribe, for the decision of such matters as the praetors referred to their judgement.  The nature of the several causes, that came before that judicature, may be seen in the first book DE ORATORE.

[d] The question in this cause before the centumviri was, whether Clusinius Figulus, the son of Urbinia, fled from his post in battle, and, being taken prisoner, remained in captivity during a length of time, till he made his escape into Italy; or, as was contended by Asinius Pollio, whether the defendant did not serve under two masters, who practised physic, and, being discharged by them, voluntarily sell himself as a slave?  See Quintilian, lib. vii. cap. 2.

Section XXXIX.