Page:Harvard Law Review Volume 9.djvu/59

JUDICIAL PRECEDENTS. 31 ex imperiali decreto processerunty legis vicem ohiinere aperte dilu- cideqtie definhmt C. I. 14, 12. The truth perhaps was, that originally decrees proceeding from the Emperor had only the effect of those pronounced by lower magistrates, and merely settled the particular controversy; that naturally and gradually they acquired the character of precedents ; but that old-fashioned lawyers of a conservative turn still clung to the ancient theory ; and even Justinian inserted in his Code a rescript, originally published about a century before, which says of interlocutory decrees: ^^ Interlociitionibiis quas in unanegotio judi- cantes protidimus^ vel postea proferernuSy non in commune prcejudi- cantibusy C. I. 14, 3. Savigny thought that the imperial decreta were not of force as precedents, i Heut. rom. Rechts, § 23. But his view is generally disapproved by later writers, i Puchta, Inst. §111; i Karlowa, rom. Rechtsgesch. 649 ^/ ^^^. ; Esmarch, rom. Rechtsgesch., § 135; Kriiger, Gesch. der Quellen, § 14. Cf. Wlassak, Krit. Stud, zur Rechtsq. 134. Rescripts (with their subvarieties of adnotationes ^ subscriptiones, epistulcB, pragmaticcB sanctiones) were answers to requests for in- structions from the judge or parties to a suit. Rescripta generalia were of force as precedents. It is not clear what made a rescript generale. ^ But cases were often not fully or fairly presented to the Em- peror, and this brought rescripts themselves into disfavor. Trajan is said to have never sent rescripts ^^ ne ad alias causas facta prcefer- rentur qucs ad gratiam composita viderentiir. Capitolinus, Vita Macrini, c. 13. In A. D. 398 it was ordered that rescripts should not be regarded as precedents. Theo. Cod. I. 2, 11. This was again declared in A. D. 426, and was finally taken up by Justinian into his Code, C. I. 14, 2. Justinian also declared that no decisions of any magistrates should have the force of precedents. C. VII. 45, 13. The law after Justinian's legislation, therefore, gave the force of binding precedents to the Emperor's decrees, but denied it to the decrees of all other magistrates, as well as to rescripts issuing from any source. Sav. i Heut. rom. R., § 24, note (r.). The idea of precedent was therefore familiar to the Roman law, but its scope was limited. ^ 1 The passage which throws most light on this question is Dig. XXII. 6, 9, §§ 5, 6. 2 See also C. I. 19, 7 ; C. I. 22, 6; Nov. 113, c. i; and cf. Dig. I. 3, 34; Dig. I, 3, 38.