largely for their fitness for judicial work and to be kept at it
during the king's pleasure. At Rome, on the contrary, the
praetorship remained a political place, held for a fixed term, and
a brief one. Information as to the unwritten law applicable to
any controversy between parties had therefore to be sought from
others. The lawyers could give it; and it was to them, not to
the judges, that resort was had. The opinion of a great jurist
was for Rome what the opinion of a judge was for England. It was
commonly accepted as conclusive not only by the people but by the
courts.

Such opinions profess to state what the law was by which rights
accrued out of a past transaction. In fact, they often do much
more. By declaring that to be the law, and declaring it with
authority, they are the first to make it certain that it is the
law. The difference between this and making law is not great.

The Romans at first accorded authority to the opinions
(_responsa_) of lawyers only because of the standing and
reputation of those who gave them. Later the emperors gave an
official character and weight to the opinions of certain lawyers
of the past. The English always accorded authority to the
opinions of their judges, because they spoke for the state.
Americans from the first have done the same.

American judges have exercised these powers of ascertaining and
developing unwritten law even more freely than English judges.
They were forced to it as a result of applying the common law of
one people to another people inhabiting another part of the world
and living under very different social conditions. In doing this