322 HISTORY OF ROMAN LAW 



plemented its primitive and scanty provisions that for all practical 

 purposes the interpretation and not the lex was the law. 



The first seeming distinction between the development of Roman 

 civil and English common law thus disappears. Each represents a 

 development from rude and simple custom into a highly refined and 

 complex jurisprudence by means of interpretation. There remains, 

 however, the apparent difference between the interpreters. What 

 was there in common between the jurists of republican Rome and 

 the king's judges in England? To answer this question we must 

 consider the position and activity of the Roman jurists. They 

 obviously were not judges in the ordinary sense, for they did not 

 hear pleadings or try cases. At the first glance, they rather resembled 

 our lawyers, for they gave advice to all who chose to consult them. 

 They helped their clients to avoid trouble by drafting contracts, 

 wills, and other instruments; and when trouble had arisen, they 

 gave opinions (responsa) on the legal points at issue. So far at 

 least their activities were those of practicing lawyers. But they 

 differed from all other practicing lawyers of whom we know anything 

 in two important respects. In the first place, they did not take 

 charge of cases in litigation, either as attorneys or as barristers. They 

 were willing neither to prepare cases for trial nor to argue cases 

 before the courts. Such matters were attended to by professional 

 orators like Cicero. Cicero was a lawyer in our sense, but at Rome 

 he was never regarded as a jurist. In the second place, while the 

 Roman jurists were always ready to furnish opinions, they neither 

 expected nor accepted pecuniary rewards. The rewards at which 

 they aimed were the gratitude of those whom they had served, the 

 confidence of the public, and eventual election to political office. 

 As practicing lawyers they were, accordingly, servants of the public 

 in general rather than servants of their special clients. 



To appreciate how far the Roman jurists discharged the same 

 function as the English judges, we must note how controversies were 

 actually decided under each of these two great systems of law. 

 Controversies were actually decided at Rome, not by the magistrate 

 who heard the pleadings, but by indices, who were private citizens. 

 Similarly, controversies have actually been decided for the last seven 

 centuries in the Anglo-American administration of justice by juries, 

 also composed of private citizens. Neither the Roman indices nor the 

 English jurymen were supposed to know the law. As English jury- 

 men are instructed by the judges, so the Roman indices were in- 

 structed by the jurists. The instruction might be directly obtained 

 by a index if he chose to ask for it, but it usually came to him in the 

 form of an opinion obtained by one of the parties. It was of course 

 possible that both parties might have obtained opinions from different 

 jurists, and it was conceivable that the opinions might be conflicting. 



