On the face of it this statement apparently gives to precedent in Severus' reign an importance similar to that which it enjoys in England and in the United States. This seems to be Holland's idea. But it should be noticed that Severus speaks of "constant decisions "in the Latin,

rerum perpetuo similiter iudicatarum auctoritatem vim legis obtimere debere.

This simply amounts to giving custom the force of law. And established custom always had remarkable validity. Julianus (Digest 84) states:

In any kinds of cases in which there are no written laws the rule which ought to be observed is that which has come to prevail by use and custom. ... Immemorial custom is observed as a statute not unreasonably..... Indeed, inasmuch as statutes themselves are binding for no other reason than because they are accepted by the judgment of the people, so anything whatever which the people show their approval of, even though there is no written rule, ought properly to be equally binding on all.

8

There is no indication in the quotation from Severus that one decision would establish a precedent. Only "where a particular interpretation has always been received, there ought to be no change made." This is simply another proof of the force of custom. Similar to this conception is a statement made particularly with reference to modern law, by J. C. Carter: 7 "A precedent is but authenticated custom." But according to the Roman law, "where a rule has obtained force that is against legal principle, no analogous extension thereof should be made." The opinion is that of Paulus. Julianus makes a similar assertion: "In cases where anything has been laid down which is against legal principle, we cannot follow the rule of law so laid down." A statement of the jurist Proculus seems to have a similar bearing: 10 "But although he who governs a province has to occupy the place and discharge the duties of every Roman magistrate, still it is his duty to consider not so much what

"Digest 1, 3, 32. It would be easy to multiply references.

• Digest 1, 3, 23, quoting Paulus (on Plautius 4).

*Law: Its Origin, Growth and Function, p. 65.

11

is done at Rome as what ought to be done." It is quite evident from these quotations that a judge's decision would only be binding in other cases so far as it recommended itself as a proper interpretation of law. A decision per se did not have the force of law 10a. Against this proof it is useless to quote the famous maxim: "1 "Res iudicata pro veritate accipitur"-" a case decided is accepted as the truth." It is not applicable for it simply indicates that any particular decision stands, and is binding on the parties to the suit. It involves also, no doubt, the principle that a judge could not alter his own decision once announced-a principle which is quite clearly set forth by Ulpian: 12 "A judge, after he has once stated his decision, afterwards ceases to be judge (in that case); and this law we use so that a judge . . cannot alter his decision, for he performed his duty once for all, whether for good or ill."

While putting forward evidence to show that case decisions did not become precedents, it is worth while mentioning the fact that, in the very extensive legal literature which still exists, there seems to be no proof that such decisions were reported and collected to be cited as valid, as is the case in modern times. There exists no discussion of them, though the Roman jurists discuss the most minute details of the applicability of particular laws. Opinions of the jurists, responsa prudentium, are discussed ad infinitum, but not judges' decisions. If decisions practically became law we should naturally expect very considerable discussion of them. There was, of course, a great deal of study of decisions made by the emperors when they sat as judges, for their word was law. The only possible suggestion that individual cases were reported is to be found in such quotations as that from Severus on "the authority of constant decisions." This may equally as well be explained by the obvious fact that jurists would naturally in their own professional work come to know of instances of uniform interpretation of certain laws in judicial decisions. It does not imply systematic reporting of decisions.

That decisions handed down by emperors became binding precedents is certain. Ulpian (Institutes 1) gives the evidence: 18

13

Whatever the Emperor has laid down by letter with his signature, or has decreed on judicial investigation, or has been pronounced out of court, or enacted by an edict, amounts beyond question to a statute. The above are cases of what are commonly called constitutions. No doubt some of them are of special application, and are not drawn into a precedent; wherever the Emperor shows indulgence to any one on the ground of his merits, or imposes a penalty on anyone, or gives him relief in a way not practised theretofore, this applies only to the particular person.

But of course the imperial decision became law, not by virtue of its being a decision, but because it was imperial. Anything the emperor determined of general application was law for the future. This brings us to Justinian's constitution of which Holland makes use: 14

....

Let no judge or arbiter think that consultations, which he believes have not been properly decided, should be followed. . . . . For if something has been decided not well, this ought not to be extended to the wrong action of other judges, since not by precedents " but by laws are decisions to be made. . . . . We ordain that all our judges follow the truth and the footsteps of the laws and of justice.

But freedom from following case decisions as precedents does not by any means indicate that judges were more free in Justinian's reign to use their own judgment as to the meaning of a law than they had ever been previously. A reader of Holland, however, might infer that this was the case, and Lord Mackenzie, in the last century, was decidedly of this opinion: 16 "Justinian repealed the law of citations, by restoring to the judges the full liberty of deciding suits according to their own judgment, without being trammelled by the opinions of any lawyers, however eminent." That this statement is wrong will be shown.

That, in an earlier period, at least a modicum of freedom of opinion was allowed judges in interpreting law may be inferred from a statement of Callistratus, who wrote about 200 A. D.: 17 "When a judge, though imperial laws have been promulgated, pronounces against them, because he does not believe that the case, in

14 Coder VII, 45, 13.

"The word exemplum is used for precedent. So too in Institutes 1, 2, 6. This meaning is not considered at all in Pauly-Wissowa vi, 1586, s. v. 1 Studies in Roman Law, 4th edition (1876), p. 20.

"Digest XLII, 1, 32.

which he is judging, is covered by them, he does not appear to have given decision against them." Still earlier, in Hadrian's time, before 138, according to Gaius, a judge enjoyed a certain amount of freedom in interpretation: 18 "If they (the responsa pruden tium) disagree, the judge may follow what view he likes; and this is expressed in a rescript of the deified Hadrian." Was there greater independence in interpreting laws allowed in the later period than in the earlier? These quotations and references to legal principles made earlier in this paper will hardly support the claim. But another element of the whole problem must be presented before this question can be finally answered.

19

So far as the topic has been developed it seems evident that precedent in the form of past case decisions was not binding. An interpretation formerly made, but considered wrong, could have no force for the future. It is very interesting to compare with this condition a statement made in a decision handed down in 1919 by the Supreme Court of Ohio: "A decided case is worth as much as it weighs in reason and righteousness, and no more. It is not enough to say 'thus saith the court." This is an illustration of Holland's statement at the beginning of this paper, and evidently indicates that modern jurists are now tending to approximate the Roman position on precedent.

There are other phases of this matter of precedent in Roman Law on which Holland does not touch at all, though they are, I think, quite germane to the subject. In the development of Roman Law in the early Empire the ius respondendi, the right of reply, played an important part, particularly in the field of private law. This ius respondendi was granted by the emperors to a few qualified jurists. Pomponius in the second century gives this account of it: 20

It may be observed in passing that before the days of Augustus the right of delivering opinions in the public interest was not granted by the head of the state, but any persons who felt confidence in their own learning gave answers to such as consulted them; moreover they did not always give their answers under seal; they very often wrote to the judge themselves, or called upon those who consulted them to testify to the opinions they gave.

18 Gaius, Institutes 1, 1, 7.

"Yale Law Journal 29 (1919-1920), note, Stare decisis: Adams Express Co. v. Beckwith (1919, Ohio), 126 N. E. 300.

"Digest 1, 2, 49.

The deified Augustus was the first to lay down, in order to ensure greater authority to the law, that the jurist-consult might deliver his answer in pursuance of an authorization given by himself.

Even in the time of the Republic the greatest respect had been given in court to the opinions expressed by prominent students of the law; 21 but now in the Empire their opinion was a kind of law, when delivered, signed and sealed at the request of a party to a suit, or even of a judge. Seneca adds a detail of information : 22 "The responses of the jurists are valid, even if no reason for the response is given by them." Justinian emphasizes, for an earlier day, their validity: 23 "The views and opinions of all of them had such authority that it was not permitted a judge to deviate from a response of them, as has been established by imperial law." Quite in harmony with this statement, though it cannot form actual proof, is the following quotation from Paulus (on the Edict 3): 24

By this Edict what has to be punished is malice in the person exercising jurisdiction: if the law has been laid down otherwise than it ought, owing to an oversight on the part of the assessor, the ill consequence ought to fall on the assessor himself, and not on the magistrate.

The assessor was an expert jurist sitting as adviser to the magistrate.

In provinces judges were to look to the praeses, the governor, for the interpretation of difficult points:

25

Where judges are in doubt about the law, the practice is for the praeses to lay it down (respondere); if they consult the praeses on a question of fact, he is not bound to furnish them with an opinion, he must tell them to pronounce judgment in accordance with their own conscientious conviction. The governor here fills the role of a jurist-even the same word technically used of their replies is here used—respondere. Of course a governor might himself use the advice of assessors.26 Berger 27 is of the opinion that a responsum which a judge re

a Cicero, Pro Caecina XXIII.

- Epistulae XCIV, 27.

23 Institutes 1, 2, 8.

24 Digest II, 2, 2.

* Digest v, 1, 79, quoting Ulpian (on the office of proconsul). Codex I, 51, 2.

Pauly-Wissowa x (1919), 1166.