28 HARVARD LAW REVIEW, opliy or common sense ; not in the fact that it is right, not that it ought to have been made, but that it has been made. Of course the decision of a court may unite the character of a judicial prece- dent with the character of an expression of wise thought or of pop- ular sentiment, but often these characters are separated. To go no farther than our own law, there is no difficulty in finding decisions standing as precedents, at which, Hke the Rule in Dumpor's Case, " the profession have always wondered," or which, at any rate, are no expression of contemporary opinion, and would never be made at the present day. Roman Law. — Of judicial precedents as a source of law we find nothing in the time of the Republic, unless so far as the rulings of the pontifical college had this character, Dig. I. 2, 2, § 6. The manner in which the pontifices intervened in lawsuits between indi- viduals is very obscure, and must remain largely matter of conjec- ture. I Ihering, Geist des rom. Rechts, § i8 a. At any rate, before the end of the Republic, their power of controlling litigation appears to have greatly diminished, and the practice of giving opinions had passed to the unofficial body of jurisconsults, juris prudentes, who seem to have enjoyed great public consideration ; but the opinions of these jurisconsults, however worthy of respect, were in no way binding on the magistrates and judges. They did not form, however remotely, a judicial body. But Augustus gave to certain persons jus respondendi by the authority of the Emperor. All that we know of theyV/j- resp07idendi is contained in three passages: one an extract from the Liber sifigularis enchiridii of Pomponius, Dig. I. 2, i, §§ 48, 49; the second, two sentences from Gains (I. § 7), as follow: ^^ Responsa prudeiitiiLin stmt sententice et opiniones eorum qidbiis permissiim est jura condere. Quorum omnium si in unum sententics concurrunt, id quod ita sentiunt legis vicem optinet ; si vero dissentiunt, judici licet quavi velit sententiam sequi ; idque rescripto Divi Hadriani signiji- catur ; the third, a passage in the Institutes, Inst. I. 2, §§ 8, 9, taken from the above cited words of Gains. There has been much discussion whether the responsa of those jurisconsults who had the juris respondendi were made binding on the courts by Augustus, or whether this quality was first given to them by Hadrian. Glasson, Etude sur Gains, 84-119. But from our present point of view the question of most interest is not at what date the responsa acquired a binding character, but whether, after they had aequired that character, they were binding only in
