Page:Harvard Law Review Volume 32.djvu/397

MILITARY LAW — A STUDY IN COMPARATIVE LAW 361 Justinian's Institutes'^ is a reproduction of the text of Gains with slight modifications. Upon these two texts there has been a considerable amount of comment and discussion; and by giv- ing emphasis to one phrase or to another, different historians have reached different views. It must be admitted in advance that we cannot be sure that we have either text in its original form and that it is doubtful how far each text-writer was incor- porating positive legislation into his statement of the law. The point upon which this divergence of view has arisen is as to the official position of the jurisconsultus and as to the binding effect of his responsa. The college of pontiffs undoubtedly possessed ah official position as the custodians and oracles of the law. Ap- parently their statements of the law were binding upon the offi- cials to whom such statements were made, including the judex. When this monopoly was wrested from them and when men who were not members of the college of pontiffs acquired knowledge of the law and gave responsa, this knowledge and authority for a long time remained in the wealthier classes. A jurisconsultus was not paid by his clients. His services were gratuitous. They were rendered in part as a performance of a pubHc duty, and in part for the purpose of obtaining political influence. It is thought worthy of note that Sabinus was not a man of ample means and that he was maintained to a great extent by his pupils. The 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. The Divine Augustus was the first to lay down, in order to ensure greater au- thority to the law, that the jurisconsult might deliver his answer in pursuance of an authorization given by himself; and from that time such an authorization was asked for as a favour. It was in consequence of that that our excellent Emperor Hadrian, on receiving a request from some lawyers of praetorian rank for leave to give legal opinions, answered the applicants that this privilege was not usually asked for but granted [or that there was no leave asked for this practice, it was simply carried out], consequently, if any one were confident of his powers, he (the Emperor) would be much pleased to find that he took steps to qualify himself for delivering opinions to the citizens." Pompontus, D. I, 2, 48, 49 (translated by Monro.) '1 "The answers of^those learned in the law are the opinions and views of persons authorized to determine and expound the law; for it was of old provided that certain persons should publicly interpret the laws, who were called jurisconsults, and whom the Emperor privileged to give formal answers. If they were unanimous the judge was forbidden by imperial constitution to depart from their opinion, so great was its authority." Institutes, I, 2, 8 (translated by Moyle.)