360 HARVARD LAW REVIEW A cursory examination of the views of the dififerent historians of Roman law will show a number of minor differences of opinion as to the position of the jurisconsuUus at Roman law. Passing allusions in Roman literature show us that responsa were ren- dered, that they were collected and that they formed the basis of comment and discussion. Of definite statements in legal writ- ings concerning the position of the jurisconsuUus we have only two texts, those of Gains ^^ and of Pomponius;^° for the text from form, but were found in collections of responsa; and finally it was extended to the views of these authorized jurists, which were expressed in other writings of theirs. This usage was confirmed through a rescript of Hadrian, which provided that if there was no divergence of opinion among the authorized jurists concerning a question, this so-called jus receptum should be as binding as a lex; and that on the other hand in cases of the so-called jus controversum, that is to say, in questions concerning which the jurists held diverging views the judex was to decide as he held to be right." Czyh- LARZ, LeHRBUCH DER InSTITUTIONEN DES RoMISCHEN ReCHTS, § II. On this question see also, Muirhead, Historical Introduction to the Private Law of Rome, 2 ed., Pt. IV, Chap. I, § 59, pp. 291-93. Buckland's Elementary Principles of Roman Private Law, § 6, p. 11. Melville, Manual of the Princi- ples OF Roman Law, Pt. I, Chap. I, § VIII, p. 35 et seq. Walton, Historical Intro- duction to Roman Law, 2 ed., Chap. XXIII. Leage, Roman Private Law, 22 et seq. Salkowski, Institutes and History of Roman Private Law (Whitfield's translation). Introduction, Pt. II, § 7, pp. 36-39. Sohm, Institutes of Roman Law (LedUe's translation, 3 ed.), Pt. I, Chap. II, § 18, p. 92 et seq. Girard, Short History OF Roman Law (translated by Lefroy and Cameron), Chap. Ill, §1,2, VI, p. 142 et seq. 1 CuQ, Les Institutions Juridiques des Romains, § 2, Bk. I, Chap. II, p. 16 et seq. 2 CuQ, Les Institutions Jurisdiques DES Romains, Bk. I, Chap. II (VI), p. 35 et seq. Kuhlenbeck, Entwicklungsgeschichte des Romischen Rechts, Bk. Ill, Chap. I, § 3) P- 305 «^ s^Q- Esmarch, Romische Rechtsgeschichte, 3 ed., Bk. II, Chap. Ill, §§ 88-92. For pontifical interpretation see also Esmarch, Romische Rechtsgeschichte, 3 ed., Bk. I, Chap. V, §§ 41-45 ; i Cuq, Les Institutions Juridiques des Romains, § I, Bk. I, Chap. II (III), p. 24 et seq. For the effect of responsa in the time of Augustus, see also Walton, Historical Introduction to Roman Law, 2 ed., Chap. XXIV, pp. 280, 281. Salkowski, Insti- tutes AND History of Roman Private Law (Whitfield's translation), Introduction, Pt. II, § 8, V, pp. 45, 46. For the effect of responsa in the time of Hadrian, see also i CuQ, Les Institu- tions Juridiques des Romains, § 2, Bk. I, Chap. II (III), § 3. ^' "The responses of the learned in the law are the expressed views and opinions of those to whom license has been given to expoimd the laws; and if the opinions of all these are in accord, that which they so hold has the force of a lex; but if they are not in accord the judex is at liberty to follow which opinion he pleases, as is stated in a rescript of the late emperor Hadrian." Gaius, I, § 7 (translated by Abdy and Walker.) 20 "Massurius Sabinus was a member of the equestrian order, and was the first to give opinions in the public interest {publice); the fact being that after this privilege had come to be given, it was allowed to him by Tiberius Caesar. It may be observed
