[Footnote *: The author here follows the then generally
received opinion of Heineccius. The proofs which appear to
confirm it are l. 2, 47, D. I. 2, and 8. Instit. I. 2.
The first of thesepassages speaks & expressly of a privilege
granted to certainlawyers, until the time of Adrian, pu
responderent. The passage of the Institutes speaks of the
different opinions of those, quibus est permissum jura
condere. It is true that the first of these passages does
not say that the opinion of these privileged lawyers had the
force of a law for the judges. For this reason M. Hugo
altogether rejects the opinion adopted by Heineccius, by
Bach, and in general by all the writers who preceded him.
He conceives that the 8 of theInstitutes referred & to the
constitution of Valentinian III., which regulated the
respective authority to be ascribed to the different
writings of the great civilians. But we have now the
following passage in the Institutes of Gaius: Responsa
prudentum sunt sententiae et opiniones eorum, quibus
permissum est jura condere; quorum omnium si in unum
sententiae concorrupt, id quod ita sentiunt, legis vicem
obtinet, si vero dissentiunt, judici licet, quam velit
sententiam sequi, idque rescripto Divi Hadrian signiticatur.
I do not know, how in opposition to this passage, the
opinion of M. Hugo can be maintained. We must add to this
the passage quoted from Pomponius and from such strong
proofs, it seems incontestable that the emperors had granted
some kind of privilege to certain civilians, quibus
permissum erat jura condere. Their opinion had sometimes
the force of law, legis vicem. M. Hugo, endeavoring to
reconcile this phrase with his system, gives it a forced
interpretation, which quite alters the sense; he supposes
that the passage contains no more than what is evident of
itself, that the authority of the civilians was to be
respected, thus making a privilege of that which was free to
all the world. It appears to me almost indisputable, that
the emperors had sanctioned certain provisions relative to
the authority of these civilians, consulted by the judges.
But how far was their advice to be respected? This is a
question which it is impossible to answer precisely, from
the want of historic evidence. Is it not possible that the
emperors established an authority to be consulted by the
judges? and in this case this authority must have emanated
from certain civilians named for this purpose by the
emperors. See Hugo, l. c. Moreover, may not the passage of
Suetonius, in the Life of Caligula, where he says that the
emperor would no longer permit the civilians to give their
advice, mean that Caligula entertained the design of
suppressing this institution? See on this passage the
Themis, vol. xi. p. 17, 36. Our author not being acquainted
with the opinions opposed to Heineccius has not gone to the
bottom of the subject. - W.]
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