Page:Harvard Law Review Volume 32.djvu/394

358 exercise more or less influence upon the subsequent current of judicial decision.

Roman law was not a law of Judicial precedent. In the classic period of the Roman law the commentators make no reference to the decisions of the court; that is, to the decisions of the prætor and the judex. They are not noticed, even for hostile criticism. They have no effect of any sort upon the development of the Roman law.

The reason for this great difference in the organs of legal development between these two systems of law lies in the fact that Anglo-American judges are trained lawyers and that they are considered as the oracles of the law, at least for each case which is submitted for adjudication. The decision of a judge is therefore the law of that case and as far as the case is a precedent, subject to the chance of reversal by a higher court or of overruling by a coordinate court, it helps to declare and to fix the law for future cases. Arguments of counsel and citations of authority are advisory only. In Roman law on the other hand, the praetor was not a trained lawyer except by a mere accident. He was not supposed to have any official knowledge of the law other than to grant or to deny the formula to the plaintiff or the exceptio to the defendant. The praetor presided over the case and referred it to the judex to ascertain the facts. The judex, like the praetor, was not supposed to have any official knowledge of the law. Any legal question of any difficulty was decided by the opinion of the jurisconsultus. This method of administering justice which seems so peculiar to the Anglo-American lawyer is due to the fact that the jus civile originally was one of the mysteries of the college of pontiffs, the priestly caste. The growing power of the plebeians and the downfall of the power of the early aristocracy of Rome reacted upon the position of the pontiffs and the exclusive knowledge of the law which was one of the great sources of their authority was wrested from them. By that time, however, it had become well settled that neither prætor nor judex was supposed to know the law and that legal questions were to be de-