The Roman Emperors manifested their
will, like our princes, by decrees and edicts; but they permitted, which
our princes do not, both the judges and private people to interrogate
them by letters in their several differences; and their answers were
called rescripts. The decretals of the popes are rescripts, strictly
speaking. It is plain that this is a bad method of legislation. Those
who thus apply for laws are improper guides to the legislator; the facts
are always wrongly stated. Julius Capitolinus says
[47]
that Trajan often
refused to give this kind of rescripts, lest a single decision, and
frequently a particular favour, should be extended to all cases.
Macrinus had resolved to abolish all those rescripts;
[48]
he could not
bear that the answers of Commodus, Caracalla, and all those other
ignorant princes, should be considered as laws. Justinian thought
otherwise, and he filled his compilation with them.
I would advise those who read the Roman laws to distinguish
carefully between this sort of hypothesis, and the Senatus Consulta, the
Plebiscita, the general constitutions of the emperors, and all the laws
founded on the nature of things, on the frailty of women, the weakness
of minors, and the public utility.
