Page:Harvard Law Review Volume 9.djvu/60

32 32 HAR YARD LA W RE VIE W. In Justinian's law books the opinions of jurisconsults and the decisions of judges in particular cases, having been jumbled together and taken up bodily into the Digest, were enacted as a statute, but in interpreting them they could not be dealt with like statute provisions in the ordinary form; the reasoning applied to them was often like that suitable to the discussion of judicial decisions, and it would have been well if it had been so to a larger extent. German Law. — In Germany during the Middle Ages the courts were composed of a judge (Richter) and Schoffen. The Richter presided, kept order and gave judgement, but on a doubtful point of law he took the opinion of the Schoffen ; and often the Schoffen sought the opinion of the Schoffen of another city or town, either because of their reputation as depositaries of the law, or because of its standing in the relation of mother city to that from which the request came. The opinions of the Schoffen were generally called Weisthumer. There is a great collection of them by Grimm, the publication of which covered the interval between 1840 and 1878. They took a variety of forms ; sometimes they were put as general rules, some- times as answers to hypothetical cases, and sometimes as opinions in particular real cases. These last availed, it would seem, not only in the cases in which they were delivered, but also as binding in future cases in the same court, and as having a weight beyond their intrinsic merits in other courts, i Stobbe, Handb. deutsch. Privatrechts, § 24; Gaupp, Das alte magdeburg. Recht, 90-94.^ The introduction of the Roman law into Germany and its driv- ing out of the ancient law were due mainly to doctors of civil law acquiring judicial position. This seems to be the conclusion reached by all the late writers. But the modern German civilians 1 Widerkind, as cited in i Stobbe, Geschichte, § 27, p. 275, gives a curious instance in which a general doctrine was perhaps established by a judgment in a particular case, not however by the opinion of Schoffen. There was a question whether the children of a deceased son could share with the son's brothers in the inheritance from the father. The King ^'rem inter gladiatores discemijussit. Vicit igitnrpars, quifiliosfiliorum com- ftitabant inter filios, etfirmattim est tit cequaliter cum patruis hereditatem dividerent pacto sempiterno'^ So in the Imperial Court in 1235, the Emperor Frederick II. established a standing judge and decided: "Idem scribet omnes sententias coram nobis in majoribus causis inventas, maxime contradictorio judictio obtentas, quae vulgo dicuntur 'gesamint urteil,^ ut in posterum in casibus similibus ambiguitas rescindatur, expressa terra secundum consuetudinem cujus sentenciatum est." i Stobbe, 466, 467.