JUDICIAL PRECEDENTS, 29 the particular case in which they were given, or whether they were obligatory upon the courts as precedents in later cases. If the former was the fact, then the jurisconsults were simply judges of a superior order, to whom the ordinary magistrates had to sub- mit themselves. If the latter was true, then we have real prece- dents, analogous to those which prevail in the common law, but more stringent in character. The extract from Pomponius throws no light on the question ; it appears to be consistent with either theory; but the passage of Gains, taken in its connection, seems to favor the latter view. He says, § 3 : ** Constat aiitejn jus civile popiili Romani ex legibuSyple- biscitis, senatus consultis^ constitutionibus priticipiim, edictis eornm qui jus edicendi habent, responsis prudentium ; and after describing the other enumerated sources of the law, he gives the account of the responsa prudentium, above cited, thus seeming to class them among the sources of the law. Further, the expressions *^jtira cotidere and legis vicem optinet'* are more applicable to opinions which made law than to those which merely decided special cases. In like manner the Institutes of Justinian say (Inst. I. 2, § 3) ^^ scrip turn jus est lex, plebis cita, senatus consulta, principum placita, magis- tratuuin edicta, responsa prudentium,' and they also adopt from Gains the expression ^^ jura conderey The most probable opinion seems therefore to be that the responsa of those prudentes who had the juris respondendi had the character of true judicial precedents. By the time of Diocletian (a. d. 284-305) ihQ jus respondendi seems to have ceased to be given, and gradually all the writings of the great jurists of the earlier years of the Empire came to be con- sidered as authorities, without any distinction being made between their responsa and their treatises. It was just as if Judge Story's judgments and treatises were to be considered of like weight. The power of adding to the law or of modifying it by judicial decisions had passed away. The law, like the Empire, had reached a period of degredation and sterility. It had no vitality, and could only nourish itself indiscriminately on the past.^ 1 " The writings of the jurists who had not possessed the/wj respondendi -^^xt. cited as entitled to an authority in no way inferior to that of the writings of privileged jurists, provided only that they were supported by the same literary prestige which distin- guished the writings of the illustrious privileged jurists. . . . Considering that, in case of the privileged jurists, their other writings, which, of course, had nothing to do with their y«j respondendi^ were ranked on a par with the writings in the responsa, it was altogether absurd to insist on the/«j respondendi as a condition of judicial authority.
