PROBLEMS OF ROMAN LEGAL HISTORY 323 



Conflicts, however, rarely occurred, because the republican jurists 

 in giving their opinions were not in the position of paid advocates 

 trying to make out a case for their clients; they were in the position 

 of unpaid and impartial servants of the public. Under these cir- 

 cumstances differences of opinion were no more numerous than those 

 which have always existed in the English and American courts. 

 The republican indices were not bound to follow the opinion of any 

 jurist; they had the powers of English criminal jurors, they were 

 judges of law and of fact alike. In both systems, however, it is 

 noteworthy that the decisions actually rendered by indices or by 

 jurymen were never cited as precedents. What was cited at Rome 

 was the response of a jurist, and what is cited in Anglo-American 

 law is the opinion of the court. Hobbes perceived the fundamental 

 analogy between the Roman jurists and the English judges when he 

 declared, in his Leviathan, that the king's judges were not properly 

 judges but jurisconsults. 



The Roman law was thus developed, as the English law has been 

 developed, not by the decision of controversies, as is sometimes said, 

 but by the opinions expressed in connection with such decisions by 

 specially trained and expert servants of the public. The English judge 

 combines some of the powers of a Roman praetor with the authority 

 of a Roman jurist he is half praetor and half iurisprudens; but his 

 influence upon the development of the law has not been praetorian, 

 but jurisprudential. 



It should be noted, further, that single responsa did not make law 

 at Rome any more than instructions from judges to juries have made 

 law in England or in America. What were regarded at Rome as 

 authoritative precedents were the so-called "received opinions/' that 

 is, the opinions which were approved and followed by the juristic 

 class. In England and in America, similarly, it is not the prelim- 

 inary rulings or the final instructions of the trial judges, but the 

 opinions of the bench to which cases are carried on appeal, that 

 constitute precedents; and it is doubtful whether a decision of even 

 the highest court in a case of first impression really makes law. It 

 seems the better opinion that it is the acceptance of such a decision 

 by professional opinion generally and its reaffirmation by the court 

 in later cases which make it really authoritative. 



The real difference between the Roman jurists and the English 

 judges is that the Roman jurists, like the law-speakers of our German 

 ancestors, were designated by natural selection. It is interesting to 

 note that, before the conversion of the Germans to Christianity, their 

 law-speakers were priests, just as the older Roman jurists were 

 pontifices. In the Frankish period the law-speakers began to be 

 artificially selected; the Frankish counts appointed advisers (rachi- 

 neburgi); and these advisers developed into the scabini of the 



