opoly of Augustus, a harsh measure, would appear with some softening
in contemporary evidence; and it was probably veiled by a decree of the
senate]

[Footnote 6111: 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 these passages speaks
expressly of a privilege granted to certain lawyers, until the time of
Adrian, publice respondendi jus ante Augusti tempora non dabatur. Primus
Divus ut major juris auctoritas haberetur, constituit, ut ex auctoritate
ejus 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 the Institutes 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