that the quality of curial ceased to be a right confessedly
belonging to all who were capable of exercising it, and became
a burden imposed upon all who were able to bear it. On the one
hand, the government discharged itself from the care of
providing for those public services which did not affect its
own interests, and so cast the obligation on this class of
citizens; and, on the other hand, it employed them to collect
the taxes destined for its use, and made them responsible for
the payment thereof. It ruined the curials in order to pay its
own functionaries and soldiers; and it granted to its own
functionaries and soldiers all the advantages of privilege, in
order to obtain their assistance forcibly to prevent the
curials from escaping from their impending ruin. Complete
nullities as citizens, the curials lived only to be fleeced.
2. All the elective magistrates were, in fact, merely the
gratuitous agents of despotism, for whose benefit they robbed
their fellow-citizens, until they should be able, in some way
or another, to free themselves from this unpleasant obligation.
3. Their election even was valueless, for the imperial delegate
in the province could annul it, and they had the greatest
personal interest in obtaining this favour from him; in this
way also, they were at his mercy.
4. Lastly, their authority was not real, for it had no
sanction. No effective jurisdiction was allowed them; they
could do nothing that might not be annulled. Nay, more: as
despotism daily perceived more clearly their impotence or
ill-will, it daily encroached further upon the domain of their
attributes, either by its own personal action, or by its direct
delegates. The business of the _curia_ vanished
successively with its powers; and a day was not far distant
when the municipal system would be abolished at a single stroke
in the rapidly decaying empire, "because," the legislator would
say, "all these laws wander, in some sort, vaguely and
objectless about the legal territory."
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General Conclusions.
Thus, the municipal power, having become completely estranged
from political and civil power, ceased to be a power itself.
Thus, the principles and forms of liberty, isolated remains of
the independent existence of that multitude of towns which were
successively added to the Roman empire, were impotent to defend
themselves against the coalition of despotism and privilege.
Thus, here also, we may learn what so many examples teach us;
namely, that all the appearances of liberty, all the external
acts which seem to attest its presence, may exist where liberty
is not, and that it does not really exist unless those who
possess it exercise a real power--a power, the exercise of which
is connected with that of all powers. In the social state,
liberty is participation in power; this participation is its
true, or rather its only, guarantee. Where liberties are not
rights, and where rights are not powers, neither rights nor
liberties exist.
We must not, therefore, be surprised either at that complete
disappearance of the nation which characterized the fall of the
Roman empire, or at the influence which the clergy soon obtained
in the new order of things. Both phenomena are explained by the
state of society at that period, and particularly by that state
of the municipal system which I have just described. The bishop
had become, in every town, the natural chief of the inhabitants,
the true mayor. His election, and the part which the citizens
took in it, became the important business of the city. It is to
the clergy that we owe the partial preservation, in the towns, of
the Roman laws and customs, which were incorporated at a later
period into the legislation of the State. Between the old
municipal system of the Romans, and the civil-municipal system of
the communes of the Middle Ages, the ecclesiastical municipal
system occurred as a transition. This transition state lasted for
several centuries. This important fact was nowhere so clearly and
strongly developed as in the monarchy of the Visigoths in Spain.
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Lecture XXIV.
Sketch of the history of Spain under the Visigoths.
Condition of Spain under the Roman empire.
Settlement of the Visigoths in the south-west of Gaul.
Euric's collection of the laws of the Visigoths.
Alaric's collection of the laws of the Roman subjects.
Settlement of the Visigoths in Spain.
Conflict between the Catholics and Arians.
Political importance of the Councils of Toledo.
Principal kings of the Visigoths.
Egica collects the _Forum judicum_.
Fall of the Visigothic monarchy in Spain.
Spain Under The Roman Empire.
Under the Roman empire, before the Barbarian invasions, Spain
enjoyed considerable prosperity. The country was covered with
roads, aqueducts, and public works of every description. The
municipal government was almost independent; the principle of a
landed census was applied to the formation of the _curiæ_;
and various inscriptions prove that the mass of the people
frequently took part with the Senate of the town, in the acts
done in its name. There were _conventus juridici_, or
sessions held by the presidents of the provinces and their
assessors in fourteen towns of Spain; and _conventus
provinciales_, or ordinary annual assemblies of the deputies
of the towns, for the purpose of treating of the affairs of the
province, and sending deputies to the emperor with their
complaints and petitions.
All these institutions fell into decay at the end of the fourth
century. The imperial despotism, by devolving all its exactions
upon the municipal magistrates, had rendered these offices
onerous to those who filled them, and odious to the people. On
the other hand, since the emperor had made himself the centre of
all, the provincial assemblies were useless except as
intermediaries between the cities and the emperor; when the
municipal organization had become enervated, and the emperor had
almost entirely disappeared, these assemblies were found to be
inconsistent and powerless in themselves. The sources whence they
emanated, and the centre at which they terminated, were devoid of
strength, and perished.
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Barbarian Invasions Of Spain.
Such was the condition of Spain when, in 409, the Vandals, Alans,
and Suevi crossed the Pyrenees. The Vandals remained in Galicia
and Andalusia until 429, at which period they passed into Africa;
the Alans, after having dwelt for a time in Lusitania and the
province of Carthagena, emigrated into Africa with the Vandals.
The Suevi founded a kingdom in Galicia, which existed as a
distinct State until 585, when Leovigild, king of the Visigoths,
reduced it under his sway. Finally Ataulphus, at the head of the
Visigoths, entered Southern Gaul, acting sometimes as an ally,
and sometimes as an enemy of the empire. He was assassinated at
Barcelona, in the year 415.
I shall now pass in rapid review the principal events which mark
the history of the Visigoths in Spain, subsequently to the death
of Ataulphus.
1. Wallia, king of the Visigoths, from 415 to 419, made peace
with the Emperor Honorius, on condition of making war against
the other Barbarians in Spain. He was furnished with supplies,
and authorized to establish himself in Aquitaine. He fixed his
residence at Toulouse, and waged war against the Alans and
Vandals. The Romans regained possession of a part of Spain;
Wallia's Goths, mingled with the Alans, settled in the province
of Tarragona. Catalonia (_Cataulania, Goth-Alani_) derives
its name from this commingling of the two nations. The
settlement of the Goths in Gaul lay between the Loire, the
Ocean, and the Garonne, and comprehended the districts of
Bordeaux, Agen, Perigueux, Saintes, Poitiers, and Toulouse.
2. Theodoric I. (419 451.) Under this monarch, the Visigoths
extended their dominion in the south-east of Gaul. Their
principal wars were with the Roman empire, which, after having
made use of the Goths against the Vandals and Suevi, was now
using the Huns against the Goths. In 425, occurred the siege of
Arles by Theodoric; in 436, the siege of Narbonne. There was a
disposition among the inhabitants of the country to range
themselves under the dominion of the Goths, who were able to
defend them against the other Barbarians, and to renounce their
allegiance to Rome, which was bringing other Barbarians to
subdue the Goths. About 449, the kingdom of the Visigoths
extended as far as the Rhone. Theodoric made several
expeditions into Spain; generally as the price of peace with
the Romans. In 451, Theodoric was killed at a battle fought
against Attila, either at Chalons-sur-Marne, or Mery-sur-Seine.
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Visigothic Monarchy In Gaul.
3. Thorismund (451-453). A victory was gained over Attila, who
had attacked the Alans settled on the Loire and in the
neighbourhood of Orleans. It was evidently the Visigoths who
drove the Huns out of Gaul. Thorismund was assassinated.
4. Theodoric II. (453-466). Avitus, _Magister militiæ_ in
the south of Roman Gaul, travelled to Toulouse to treat of
peace with Theodoric, and was made emperor by the aid of the
Visigoths. In concert with the Romans, Theodoric II. made an
expedition into Spain against the Suevi. Rechiar, king of the
Suevi, was defeated on the 5th of October, 450, near Astorga.
This was rather an expedition than a conquest on the part of
the Visigoths. Theodoric II., a curious portrait of whom has
been left us by Sidonius Apollinarius, was assassinated in 462;
he had acquired the district of Narbonne.
5. Euric (466-484). This reign was the culminating point of the
Visigothic monarchy in Gaul. Euric led expeditions beyond the
Loire against the Armoricans; in 474, he conquered Auvergne,
which was then ceded to him by treaty; he had already conquered
Arles and Marseilles, so that the monarchy of the Visigoths
then extended from the Pyrenees to the Loire, and from the
Ocean to the Alps, thus adjoining the monarchies of the
Burgundians and Ostrogoths. Euric had also extended his
dominions into Spain, where he possessed the Tarragonese
district and Bœtica, which he had conquered from the Suevi.
Euric had the laws and customs of the Goths written in a book.
A passage of Sidonius Apollinarius which speaks of
_Theodoricianæ leges_, has led to the belief that
Theodoric commenced this collection; but Euric is also called
Theodoric.
6. Alaric II. (484-507.) This reign was the epoch of the decay
of the Visigothic monarchy in Gaul. Alaric, less warlike than
his predecessors, gave himself up to the pursuit of pleasure.
He was defeated by Clovis, at Vouillé near Poitiers, and left
dead on the field. The Franks in the east, and the Burgundians
in the west, dismembered the Visigothic monarchy, which thus
became reduced to Languedoc, properly so called, and a few
districts adjacent to the Pyrenees.
{209}
The Breviarium Aniani.
Alaric did for his Roman subjects what Euric had done for the
Goths. He collected and revised the Roman laws, and formed them
into a code called the _Codex Alaricianus_. This code was
based upon the _Codex Theodosianus_ published in 438 by
Theodosius the Younger, and upon the _Codex Gregorianus_,
the _Codex Hermogenianus_, the _Pauli Sententiæ_, and
the _Constitutiones Imperiales_, published subsequently to
the reign of Theodosius. This code was also called the
_Breviarium Aniani_. It has been thought that Anianus, the
referendary of Alaric, was its principal editor; but Père Sirmond
has proved that Anianus only published it by order of the king,
and sent authentic copies of it into the provinces. By an act
of Alaric, the Roman legislation was, so to speak, revived,
rearranged, and adapted to the monarchy of the Goths. It
thenceforth emanated from the Gothic king himself. In the north
of Gaul, whilst the Barbarian laws ceased to be customs and
became written laws, the Roman laws lost their force as a
whole, and became customs; in the south, on the other hand,
they remained written laws, and retained much greater power,
exercising an important influence upon the laws of the
Barbarians. It would appear that this twofold written
legislation must tend necessarily to maintain the separation of
the two nations; but it contributed on the contrary to bring it
to an end.
7. After the death of Alaric II., his legitimate son Amalaric,
still a child, was taken into Spain. His natural son, Gesalic,
became a king in Gaul. At this period, the monarchy of the
Visigoths was transferred from Gaul into Spain. The Franks,
Burgundians, and Ostrogoths, seized the Gallic possessions of
the Visigoths. Gesalic was defeated, and Amalaric reigned under
the protection of his grandfather Theodoric, and the tutelage
of Theudes.
8. On the death of Amalaric, Theudes was elected king, and
reigned from 531 to 548. He fixed the seat of the Visigothic
monarchy in Spain. He waged long wars against the Franks, and,
though an Arian, behaved with tolerance towards the Catholics.
He authorized the bishops to meet annually in council at
Toledo. Until the reign of Theudes, the principle of hereditary
succession to the throne appears to have prevailed among the
Visigoths; after Theudes, the principle of election prevailed
in fact and in law.
{210}
9. From 548 to 567, reigned Theudegisil, Agila, Athanagild.
There were continual wars between the Franks, the Suevi, and
the Romans. To obtain the assistance of the Romans in his
rebellion against Agila, Athanagild gave up to the Emperor
Justinian several places between Valentia and Cadiz. Roman
garrisons were accordingly sent into those towns. The Romans
had also retained possession of other towns in Spain.
Athanagild took up his residence at Toledo. He was the father
of Queen Brunehault. At his death, the grandees remained five
months without electing his successor. At length they elected
Liuva, the governor of Narbonne, who associated his brother
Leovigild with him on the throne. Leovigild governed Spain, and
Liuva, Visigothic Gaul. Liuva died in 570, and Leovigild became
sole king. With him commences, to speak truly, the complete and
regular monarchy of the Visigoths in Spain.
Reign Of Leovigild.
10. Leovigild, from 570 to 586, consolidated and extended the
monarchy. He gained great victories over the Greco-Romans who
had recovered a part of Spain, and won from them
Medina-Sidonia, Cordova, and other towns. He also defeated the
Vascons [Footnote 16] who had maintained their independent
occupation of the country on both sides of the Pyrenees. In
586, he completely subdued the Suevi; he greatly extended the
royal power, made large confiscations of the property of the
church and the nobles, persecuted the Catholics, and convoked a
council of Arian bishops at Toledo, in 582, to endeavour to
explain Arianism in such a manner as to satisfy the people, and
to insure its general reception in his dominions. A civil war
broke out between Leovigild and his son Hermenegild, who was a
Catholic. After various vicissitudes, Hermenegild was taken,
confined at Seville in a tower which bears his name, and put to
death in 684. Before his insurrection, he was associated with
his father in the crown, as was also his brother Recared, who
governed the provinces in Gaul. Leovigild corrected and
completed the laws of Euric.
[Footnote 16: Probably the Basques of the present day. ]
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Up to this period, there was no unity in the Visigothic
monarchy. General institutions were wanting. The national
assemblies were more irregular than in other countries. Neither
the principle of hereditary succession, nor that of election,
prevailed as regarded the kingly office. Out of fourteen kings,
six had been assassinated. There was no coherence among the
provinces of the kingdom. The clergy were deeply divided
amongst themselves. The king gave a factitious preponderance to
the Arian minority.
Reign Of Recared.
11. In 586, Recared I. succeeded Leovigild, declared himself a
Catholic, and convoked the third general council of Toledo, in
587. A union was effected between the royal and ecclesiastical
authority. Recared found himself in a position somewhat
analogous to that of Constantine the Great, after his
conversion to Christianity. He was energetically supported by
the Catholic clergy, whom he, in his turn, as zealously
maintained. At the third council of Toledo, the two powers made
in common the laws of which they both had need. An important
fact should be noticed in the tenure of this council. During
the first three days the ecclesiastics sat alone, and regulated
religious affairs exclusively. On the fourth day, laymen were
admitted; and affairs both civil and religious were then
treated of.
Recared made war against the Franks of Gothic Gaul, and against
the Romans in Spain. This last war was terminated by the
intervention of Pope Gregory the Great, who negotiated a treaty
between the Emperor Maurice and Recared, the latter of whom,
since 590, had sent ambassadors to the Pope. The Arian clergy
excited several rebellions against Recared.
12. In 601, Recared was succeeded by his son Liuva II., who was
assassinated in 603. Withemar, his successor, was assassinated
in 610. Gundemar was then elected, but he died in 612. Sisebut
acceded to the throne in 613, and made war against the remnant
of the Roman Empire in Spain. He reduced to a mere nullity the
possessions which the emperor had until then retained. He
imposed upon the Jews the necessity of being baptized.
Heraclius had commenced this persecution in the Eastern Empire;
and it entered as a condition into the treaty which he made
with Sisebut. The Jews, when driven from Spain, took refuge in
Gaul, where they were equally persecuted by Dagobert: so that
they knew not whither to flee for refuge. The laws of Sisebut
were issued in virtue of the king's authority alone, without
the concurrence of the councils.
{212}
13. Recared, the second son of Sisebut, reigned for a few
months. He was succeeded, in 621, by Suinthila, son of Recared
I., who was elected king. Suinthila had served as a general
under Sisebut. We frequently meet with similar cases in the
history of the Visigoths; and they prove that the idea of
hereditary succession was still not firmly established.
Suinthila made a great expedition against the Basques. He drove
them to the other side of the Pyrenees, and built a fortress
which is believed to have been Fontarabia. He completely
expelled the Romans from Spain, by sowing dissension between
the two patricians who still governed the two Roman provinces,
and by granting the Roman troops who remained in the country
permission to return home.
Usurpation Of Sisenand.
14. In 631, occurred the usurpation of Sisenand by the aid of
King Dagobert, who sent an army of Franks, which penetrated as
far as Saragossa. Suinthila abdicated the throne. Sisenand
succeeded him, and reigned from 631 to 636. In 634, Sisenand's
usurpation was confirmed by the fourth council of Toledo. The
crown was declared elective by the bishops and nobles, and
ecclesiastical privileges received great extension. From 636 to
640, Chintila reigned. During his reign, the fifth and sixth
councils of Toledo passed laws regarding the elections of kings
and the condition of their families after their death, against
the Jews, and on other subjects. Chintila was succeeded by his
son Tulga, who was deposed in 642.
15. Chindasuinth reigned tyrannically from 642 to 652. Two
hundred of the principal Goths were put to death, and their
property confiscated; many of the inhabitants emigrated;
Chindasuinth convoked the seventh council of Toledo, the canons
of which against the emigrants were very rigorous. In all the
measures of his government, we may discern the influence of the
Catholic clergy, intimately connected with the king against the
Arian faction. One canon ordained that every bishop residing
near Toledo, should spend one month in every year at the court
of the king. Chindasuinth revised and completed the collection
of the laws relating to different classes of his subjects, and
entirely abolished the special employment of the Roman law in
his dominions. In 649, he associated his son Recesuinth with
him in the crown, and obtained his recognition as his
successor.
{213}
Recesuinth And Divine Right.
On opening the eighth council of Toledo, Recesuinth said; "The
Creator raised me to the throne by associating me in the
dignity of my father, and by his death the Almighty has
transmitted to me the authority which I have inherited." These
words are the expression of the theory of divine right.
Recesuinth directed the council to revise and complete the
collection of laws; imposed a fine of thirty pounds of gold on
any one who should appeal to any other than the national law;
permitted marriages between the Romans and Goths, which had
been until then interdicted; revoked the laws of his father
against the emigrants; and restored a portion of the
confiscated property. A law was also passed, separating the
private domain of the king from the public domain. The
preponderance of the bishops in the council is evident. The
canons are signed by seventy-three ecclesiastics, and by only
sixteen counts, dukes, or _proceres_. Recesuinth died on
the 1st September, 672.
16. Wamba, elected on the 19th September, 672, manifested great
repugnance to accept the crown. He repressed the rebels in
Gothic Gaul, and besieged Narbonne and Nismes. He also
vigorously opposed the descents of the Saracens, who were
beginning to infest the coasts of Spain, as the Normans were
infesting those of Gaul. He fortified Toledo and many other
towns. During his reign the division of the kingdom into
dioceses took place; six archbishoprics and seventy bishoprics
were established. Wamba made several laws for organizing
military service, and repressing the excesses of the clergy.
17. In 680, Wamba was deposed by the intrigues of Erwig, who
was supported by the clergy. Wamba abdicated, and withdrew to a
convent. Erwig convoked the twelfth council of Toledo, at which
Wamba's voluntary abdication was announced, and Erwig appointed
his successor. The new monarch directed the council to revise
and modify the laws of Wamba regarding military service, and
the penalties to be imposed upon delinquents. A less severe
legislation was the work of the twelfth and thirteenth councils
of Toledo.
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The Forum Judicum.
18. Erwig had given his daughter Cixilone in marriage to Egica,
a near relation of Wamba. In 687, Egica succeeded Erwig. He
charged the sixteenth council of Toledo to make a complete
collection of the laws of the Visigoths; and this collection,
under the name of the _Forum judicum_, or _Fuero
juzgo_, long ruled the Spanish monarchy.
19. Egica had associated with himself his son Witiza, who
succeeded him in 701. Witiza was tyrannical and dissolute. He
allowed the priests to marry, recalled the Jews, entered into
conflict with the Spanish clergy and the Pope; violently
persecuted the principal lay lords, among others Theutfred and
Favila, dukes of Cordova and Biscay, and sons of king
Chindasuinth; and fell a victim, in 710, to a conspiracy formed
against him by Roderic, son of Theutfred. Roderic, or Rodrigo,
became king of the Visigoths, and his reign was the last of
this monarchy. I shall not relate to you his wars with the
Saracens, or the celebrated adventure of Count Julian and his
daughter La Cava, who was violated by Roderic, or any of the
last scenes of this history which have now become popular
poetry. [Footnote 17] Political institutions are now the sole
subject of our study. In my next lectures, I shall tell you of
the _Forum judicum_, a very remarkable legislative work,
which deserves our serious examination and attention.
[Footnote 17: For the legend of Count Julian, and other
information regarding this most interesting period of Spanish
history, see Washington Irving's "Legends of the Conquest of
Granada and Spain," in Bohn's edition of his works.]
{215}
Lecture XXV.
Peculiar character of the legislation of the Visigoths.
Different sorts of laws contained in the _Forum judicum_.
It was a doctrine as well as a code.
Principles of this doctrine on the origin and nature of power.
Absence of practical guarantees.
Preponderance of the clergy in the legislation of the
Visigoths.
True character of the election of the Visigothic kings.
The Visigothic legislation characterized by a spirit of
mildness and equity towards all classes of men, and especially
towards the slaves.
Philosophical and moral merits of this legislation.
Character Of Visigothic Legislation.
Of all the Barbarian codes of law, that of the Visigoths is the
only one which remained in force, or nearly so, until modern
times. We must not expect to find in this code itself the only,
or even the principal, cause of this circumstance. And yet the
peculiar character of this code contributed powerfully to
determine its particular destiny; and more than one phase in
Spanish history is explained, or at least elucidated, by the
special and distinctive character of its primitive legislation.
This character I wish to make you thoroughly understand. I cannot
now deduce therefrom all the consequences which it contains; but
I think they will readily be perceived by the careful observer.
The legislation of the Visigoths was not, like that of the
Franks, Lombards, and others, the law of the Barbarian
conquerors. It was the general law of the kingdom, the code which
ruled the vanquished as well as the victors, the Spanish Romans
as well as the Goths. King Euric, who reigned from 466 to 484,
had the customs of the Goths written out. Alaric II., who ruled
from 484 to 507, collected and published in the
_Breviarium-Aniani_, the Roman laws which were applicable to
his Roman subjects. Chindasuinth, who reigned from 642 to 652,
ordered a revision and completion of the Gothic laws, which had
already been frequently revised and augmented since the time of
Euric; and completely abolished the Roman law.
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Recesuinth, who reigned from 652 to 672, by allowing marriages
between the Goths and Romans, endeavoured completely to
assimilate the two nations: thenceforward, there existed, or at
least there ought to have existed, on the soil of Spain, one
single nation formed by the union of the two nations, and ruled
by one single code of laws, comprising the essential parts of the
two codes. Thus, whilst the system of personal laws, or laws
based on the origin of individuals, prevailed in most of the
Barbarian monarchies, the system of real laws, or laws based upon
land, held sway in Spain. The causes and consequences of this
fact are of great importance.
Laws Of The Forum Judicum.
Four different kinds of laws may be distinguished in the _Forum
judicum_.
1. Laws made by the kings alone, in virtue of their own
authority, or merely with the concurrence of their privy
council, _officium palatinum_.
2. Laws made in the national councils held at Toledo, in
concert with the bishops and grandees of the realm, and with
the assent, more frequently presumed than expressed, of the
people. At the opening of the council, the king proposed, in a
book called _tomus regius_, the adoption of new laws or
the revision of old ones; the council deliberated thereupon;
and the king sanctioned and published its decisions. The
influence of the bishops was predominant.
3. Laws without either date or author's name, which seem to
have been literally copied from the various collections of laws
successively compiled by Euric, Leovigild, Recared,
Chindasuinth, and other kings.
4. Lastly, laws entitled _antiqua noviter emendata_, which
were mostly borrowed from the Roman laws, as is formally
indicated by their title in some manuscripts.
The _Forum judicum_, as we possess it at the present day, is
a code formed of the collection of all these laws, as finally
collected, revised, and arranged at the sixteenth council of
Toledo, by order of King Egica. The most ancient Castilian
version of the _Forum judicum_ appears to have been made
during the reign of Ferdinand the Saint (1230-1252).
{217}
Visigothic Theory Of Law.
Legislation is almost always imperative; it prescribes or
interdicts; each legal provision usually corresponds to some fact
which it either ordains or prohibits. Rarely does it happen that
a law, or code of laws, are preceded by a theory on the origin
and nature of power, the object and philosophic character of law,
and the right and duty of the legislator. All legislations
suppose some solution or other to these primary questions, and
conform thereto; but it is by a secret bond, frequently unknown
to the legislator himself. The law of the Visigoths has this
singular characteristic, that its theory precedes it, and is
incessantly recurrent in it--a theory formally expressed, and
arranged in articles. Its authors wished to do more than ordain
and prohibit; they decreed principles, and converted into law
philosophical truths, or what appeared to them to be such.
This fact alone indicates that the _Forum judicum_ was the
work of the philosophers of that period; I mean, the clergy.
Never did such a proceeding occur to the mind of a new people,
still less to a horde of Barbarian conquerors. Assuredly a
doctrine which thus serves as preface and commentary to a code,
merits our best attention.
"The law," says the _Forum judicum_, "is the emulator of
divinity, the messenger of justice, the mistress of life. It
regulates all conditions in the State, all ages of human life;
it is imposed on women as well as on men, on the young as well
as on the old, on the learned as well as on the ignorant, on
the inhabitants of towns as well as on those of the country; it
comes to the aid of no particular interest; but it protects and
defends the common interest of all citizens. It must be
according to the nature of things and the customs of the State,
adapted to the time and place, prescribing none but just and
equitable rules, clear and public, so as to act as a snare to
no citizen."
In these ideas on the nature and object of written law, the
fundamental idea of the theory is revealed. There is an
unwritten, eternal, universal law, fully known to God alone, and
which the human legislator seeks after. Human law is good only in
so far as it is the _emulator_ and _messenger_ of the
divine law. The source of the legitimacy of laws is, then, not to
be found on earth; and this legitimacy originates, not in the
will of him or them who make the laws, whoever they may be, but
in the conformity of the laws themselves to truth, reason, and
justice--which constitute the true law.
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All the consequences of this principle were certainly not present
to the mind of the Spanish bishops, and many of the consequences
which they deduced were very false; but the principle was there.
They deduced from it this other principle, then unknown to
Europe, that the character of law is to be universal, the same
for all men, foreign to all private interests, given solely for
the common interest. On the other hand, it was the character of
the other Barbarian codes that they were conceived for the
furtherance of the private interests, either of individuals or of
classes. Thus the whole system of laws, whether good or bad,
which issued therefrom, bore this imprint; it was a system of
privileges, _privatæ leges_. The councils of Toledo alone
attempted to introduce into politics the principle of equality in
the sight of the law, which they derived from the Christian idea
of equality in the sight of God. Thus, the law of the Visigoths
was, at this period, the only one that could be called _lex
publica_.
Theory On The Nature Of Power.
From this theory on the nature of law, resulted the following
theory on the nature of power.
1. No power is legitimate except in so far as it is just, as it
governs and is itself governed by the true law, the law of
justice and truth. No human will, no terrestrial force can
confer on power an external and borrowed legitimacy; the
principle of its legitimacy resides in itself and in itself
alone, in its morality and its reason.
2. All legitimate power comes from above. He who possesses and
exercises it, holds it solely by reason of his own intellectual
and moral superiority. This superiority is given to him by God
himself. He does not, therefore, receive power from the will of
those over whom he exercises it; he exercises it legitimately,
not because he has received it, but because he possesses it in
himself. He is not a delegate or a servant, but a superior, a
chief.
This two-fold consequence of the definition of law frequently
occurs in the legislation of the Visigoths. "The king is called
king (_rex_) in that he governs justly (_recte_). If he
acts with justice, he legitimately possesses the name of king; if
he acts with injustice, he miserably loses it. Our fathers,
therefore, said with reason: _Rex ejus eris si recta facis; si
autem non facis, non eris_. The two chief virtues of royalty
are justice and truth." "The royal power, like the whole of the
people, is bound to respect the laws. Obeying the will of heaven,
we give, to ourselves as well as to our subjects, wise laws,
which our own greatness and that of oar successors is bound to
obey, as are also the whole population of our realm."
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Limits Of These Theories.
"God, the Creator of all things, in arranging the structure of
the human body, raised the head above, and willed that thencefrom
should issue the nerves of all the members. And he placed in the
head the torch of the eyes, that thence might be detected all
things that might be injurious. And he established therein the
power of intellect, charging it to govern all the members, and
wisely to regulate their action. We must therefore first regulate
that which concerns princes, watch over their safety, protect
their life; and then ordain that which has relation to peoples,
in such sort that while suitably guaranteeing the safety of
kings, we may at the same time better guarantee that of the
peoples."
After having established that that power is alone legitimate
which acts according to justice and truth, which obeys and
prescribes the true law, and that all legitimate power comes from
above, and derives its legitimacy from itself, and not from any
terrestrial will, the theory of the councils of Toledo comes to a
stop. It does not regard that which is actually occurring in the
world: it forgets that, with such a definition, no one here below
possesses legitimate power or can fully possess it, and that,
nevertheless, society has a right to exact that actual power
should be legitimate. This theory knows and lays down the true
principles of power; but it neglects its guarantees.
Here we come to the junction-point of the two doctrines which
have ever contested, and still contest, the possession of the
world. One maintains that power comes from below; that, in its
origin as well as in right, it belongs to the people, to numbers;
and that those who exercise it, exercise it only as delegates, as
servants. This theory misunderstands the true principles and the
true nature of power; but it tends to constitute those guarantees
which rightfully belong to society. Considered as a theory, it
maintains, and assumes to render legitimate, the despotism of
numbers. But as, in practice, this despotism is impossible, it
soon violates its own principle, and limits its operation to the
organization of a system of guarantees, the object and result of
which is to constrain actual power to become, in its conduct,
rightful and legitimate power.
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The opposite theory, which is more profound and true at its
starting-point, assigns absolute power and sovereignty to that
Being alone, in whom resides all truth and justice: it refuses
it, at the outset, to chiefs, as well as to peoples; it
subordinates both alike to eternal laws which they did not make,
and which they are equally bound to observe. It reasonably
affirms that all legitimate power comes from above, that it is
derived from superior reason, not from number, and that number
should submit to reason; but soon, forgetting that it has placed
sovereignty beyond the earth, and that no one here below is God,
it becomes dazzled by its own lustre; it persuades itself, or
tries to do so, that the power which comes from above, descends
upon earth as full and absolute as it is at its source; it is
indignant that limits should be affixed to its exercise, and if
there is nothing to stop its progress, it establishes, in fact, a
permanent despotism, after having denied, in principle, its
legitimacy; whereas, the opposite theory, which assumes to found
despotism in principle, almost invariably ends by destroying it
in fact, and by establishing only a limited power.
Consequences Of The Visigothic Theory.
Such, then, are the consequences of the theory regarding power
and law, conceived by the Visigothic legislators. I do not say
the consequences which logically flow from it, when the theory is
held in all its bearings and faithfully followed out; but the
actual consequences which it almost always entails, by the
natural tendency of things, and by the deviation into which they
are forced by the passions of mankind.
1. The best depositaries of legitimate power, those who most
probably possess a knowledge of the true law, are the
ecclesiastics. Ministers of the divine law in the relations of
man with God, they naturally hold the same office in the
relations of man with man. It may then be presumed that,
wherever this theory prevails, the political predominance of
the clergy is already established, and will continue to
increase. The theory is at first its symptom, and becomes
afterwards its cause.
2. The political predominance of the clergy does not well
accord with the principle of hereditary monarchy. The history
of the Jews furnishes an example of this. The transmission of
actual power taking place altogether independently of the men
who are thought to possess rightful power in a higher degree
than all others, is an inconsistency. The theory will,
therefore, tend to make monarchy elective, or at least to place
every monarch, at his accession, under the necessity of
obtaining the recognition and sanction of the clergy.
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3. The election of the monarch, or the necessity for his
recognition, must be the only political guarantee, the only
limit affixed to the exercise of actual power. This power, once
constituted in this manner, is sovereign; for the depositaries
of true sovereignty, which emanates from God, have conferred it
upon its possessor by election. It would be absurd and impious
to seek for guarantees against its excess in powers of an
inferior order, less enlightened and less pure. Therefore,
every institution the object of which is either to divide
power, or to limit it in its exercise by opposing to it other
powers emanating from other sources, is proscribed by this
theory. Elective monarchical power is absolute. All the
inferior powers necessary for the government of society are
derived from it, and are instituted by it in its own name.
These consequences are met with in the legislation of the
Visigoths to as great an extent as the necessary incoherence of
human affairs will allow.
Political Predominance Of The Bishops.
I. The political predominance of the bishops in the Visigothic
monarchy, is a fact evident throughout its history. The councils
of Toledo made both the kings and the laws. The principal Gothic
laymen who attended and deliberated thereat were few in number,
as is proved by the signatures to the canons of the councils. The
phrases with which we sometimes meet, _cum toto populo, populo
assentiente_, are mere formulas which pay a kind of homage to
ancient facts rather than to present and real facts.
Excommunication is the legal punishment decreed against bad
kings, against attempts at usurpation, insurrection, and other
crimes. The predominance of the bishops was not confined to the
councils. The oversight of local functionaries and judges was
also intrusted to them, and they had the power of provisionally
overruling any judgments of which they disapproved. The bishops
and the king were the only persons who could not personally
defend their own cause, and who were bound to appear by proxy in
such cases, lest their personal presence should influence the
decision of the judge. The personal and real privileges granted
to the clergy, the facility and perpetuity accorded to donations
made to churches, everything in fact in the laws as well as in
history, testifies that, in political matters, the bishops
occupied the foremost rank, and that their predominance daily
increased.
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Election Of Kings.
It must not however be supposed that this predominance was
unlimited, or that it was established without efforts; it was a
difficult task to subjugate a Barbarian king and people to an
almost exclusively moral power, and the code of the Visigoths
contains several enactments tending to restrain the independence
of the clergy, and to keep them under obedience to the civil
power. Ecclesiastics of every rank were bound, under the same
penalties as laymen, to appear and defend their causes before the
civil judges. These same judges were competent to punish
licentious priests, deacons, and sub-deacons. The eleventh
council of Toledo ordained that bishops guilty of certain crimes
should be judged by the ordinary laws, and punished in the same
cases as laymen, by the _lex talionis_. The laws of Wamba
compelled ecclesiastics as well as laymen to do military service,
and other duties of a corresponding kind. In a word, that clergy
which we behold at the head of society and constituting the
national assembly almost by themselves, was at the same time less
isolated from the civil order, and less constituted as a distinct
body by jurisdiction and privilege, than it was elsewhere at the
same period. However, the coincidence of these two facts is
natural. We feel less need of separation from a society, as we
become nearer subduing it.
II. As to the election of kings, which may be regarded as the
natural consequence of the system, or simply of the theocratic
tendency, it is formally laid down as a principle in the _Forum
judicum_, and was the common law of the Visigothic monarchy:
but we must not mistake as to the origin and character of this
institution; in Spain, it was much less an institution of liberty
than an institution of order, a means of preventing civil wars
and the disorders attendant upon usurpations.
From causes difficult to discover, the principle of the regular
hereditariness of royalty did not prevail among the Visigoths as
among the other Barbarian peoples. The throne at the death of the
kings, and even during their lifetime, was the object aimed at by
a host of ambitious individuals, who contested for it _vi et
armis_, and seized or lost it according to the powers of the
claimants and their factions.
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It was against this state of things, much more than with a view
to establish or maintain the right of the nation to choose its
own sovereign, that the election of the monarch by the bishops
and grandees assembled in council at Toledo, was instituted. The
text of the law clearly lays this down. "Henceforth the
sovereigns shall be chosen for the glory of the kingdom, in such
sort that, in the royal town, or in the place in which the prince
shall have died, his successor shall be chosen by the consent of
the bishops, the grandees of the palace, and the people: and not
at a distance by the conspiracy of a few perverse persons, or by
a seditious tumult of an ignorant multitude." Various canons of
the fifth, sixth, seventh and thirteenth councils of Toledo,
inserted as laws in the _Forum judicum_, have as their only
object the repression of attempts at usurpation, and interdict
all seizure of the throne by force, determine what classes of men
can never be eligible to the kingly office, and also guarantee
the lives and property of the families of the dead kings, against
the violence and avidity of their elected successors. In a word,
all tends to prove that this election was intended to counteract
violent usurpation much more than to prevent regular hereditary
succession.
Frequency Of Usurpation.
Historical facts lead us to the same result. The succession of
the Visigothic kings was a series of violent usurpations.
Scarcely do we meet with one or two examples of veritable
elections, made freely and without any anterior constraint, in
consequence of the throne falling vacant. Almost always the
election by the council only sanctioned the usurpation; and at
the same time that we may doubt of its liberty, we see that its
special object is to prevent the return of a great disorder.
Neither is there anything to indicate that when, by reason of the
preponderance of a more powerful or more popular king, the
principle of hereditary succession was on the point of
introducing itself, the councils either attempted to oppose its
entrance, or considered the act as an infraction of their
fundamental law. In every circumstance, at this period, in this
state of society, and particularly in great monarchies, the want
of order, of rule, of some check to restrain the irregular
operation of force, was the dominant want felt by men who, like
the bishops, were much more enlightened and much more civilized
than the Barbarian conquerors; and political institutions, as
well as civil laws, were framed rather with this object than with
a view to the assurance of liberty.
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Progress Of Ecclesiastical Pretensions.
Such being its true nature, the election of the kings by the
councils of Toledo could evidently not have rested entirely in
the hands of the clergy. Armed and ambitious Barbarians would not
have endured patiently to receive the crown at the will of
bishops, nearly all of whom were Romans. Originally, the bishops
exercised, in fact, no other right than that of sanctioning
present usurpation, by anathematizing similar conduct in the
future. In proportion as their moral influence and real power
became consolidated and extended, they attempted higher things,
and appeared to aspire to the famous right of giving and taking
away the crown. The _Forum judicum_ furnishes two remarkable
proofs of this progress. The fourth council of Toledo, held
during the reign of Sisenand, in 671, decreed by its
seventy-fifth canon, "that when the king had died in peace, the
grandees of the realm and the bishops should elect his successor,
by common consent." At a later period, when this canon was
transported as a law into the national code, it was amplified in
these terms: "Let no one, therefore, in his pride, seize upon the
throne; let no pretender excite civil war among the people; let
no one conspire the death of the prince; but, when the king is
dead in peace, let the principal men of the whole kingdom,
together with the bishops, _who have received power to bind and
to loose, and whose blessing and unction confirm princes in their
authority_, appoint his successor by common consent and with
the approval of God." A similar interpolation occurs in the
insertion of a canon of the eighth council, which began: "We, the
bishops, priests, and other inferior clerks, in concert with the
officers of the palace, and the general assembly, decree," &c. In
the _Forum judicum_, after the word _priests_, these
words are added: "_Who have been established by our Lord Jesus
Christ, to be the directors and heralds of the people_," Such
phrases as these clearly indicate the progress of ecclesiastical
pretensions, and their success. It is, however, certain as a
fact, that the councils of Toledo never really disposed of the
crown, but that it was almost always taken by force; and that the
election of the kings by the grandees and bishops, though
established as a principle by the laws, must not be considered as
a proof either of the complete predominance of the theocratic
system, or of the extent of the national liberty.
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Duties Of The Sovereign.
III. But if, after having ascertained who possessed the right of
appointment to the highest political office, and the mode in
which this office was conferred, we endeavour to discover, from
the laws of the Visigoths, what duties were imposed on their
kings, and what guarantees they gave their subjects for the
performance of those duties, the consequences which we have
already indicated, as likely to result from the theory that
presided over this code, become clearly revealed. Good precepts
abound, but real guarantees are wanting.
To those who read these laws, the legislator appears much better
aware of the duties of the sovereign, and of the rights and
necessities of the people, than were the other Barbarian
legislators; and, in fact, he was so. But if they next inquire
where were the independent forces capable of procuring or
insuring the maintenance of these principles, and how the
citizens exercised their rights or defended their liberties, they
find absolutely nothing. The code of the Visigoths, though more
enlightened, more just, more humane, and more complete than the
laws of the Franks or Lombards, left despotism at greater
liberty, and almost entirely disarmed freedom. Texts in abundance
might be quoted in support of this assertion.
If, from these general principles, we descend to the details of
legislation, we shall find that the code of the Visigoths was, in
this respect also, much more provident, more complete, more wise,
and more just, than any other Barbarian code. The various social
relations were much better defined therein; and their nature and
effects more carefully analyzed. In civil matters, we meet with
repetitions of the Roman law at almost every step; in criminal
matters, the proportion of punishments to crimes was determined
according to moral and philosophical notions of considerable
justice. We discern therein the efforts of an enlightened
legislator struggling against the violence and inconsiderateness
of Barbarian manners. The title, _De cœde et morte hominum_,
compared with the corresponding laws of other peoples, is a very
remarkable example of this.
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Principle Of Criminal Law.
In other codes the injury done seems almost alone to constitute
the crime, and the punishment is fixed in that material
reparation which results from a pecuniary composition. In this
code, crime is measured by its moral and true element--intention.
The various shades of criminality, absolutely involuntary
homicide, homicide by inadvertence, homicide by provocation,
homicide with or without premeditation, are all distinguished and
defined almost as accurately as in our codes, and the punishments
vary in an equitable proportion. The justice of the legislator
went further than this. He attempted, if not to abolish, at least
to diminish that diversity of legal value established among men
by the other Barbarian codes. The only distinction which it
maintained was that between the freeman and the slave. In regard
to freemen, the punishment does not vary, either according to the
origin or rank of the dead man, but simply according to the
different degrees of the moral culpability of the murderer. With
regard to slaves, though not daring completely to deprive masters
of the right of life and death, the _Forum judicum_ at least
attempted to subject them to a public and regular course of
procedure:--
_Laws Regarding Slaves._
"If no one who is guilty or accomplice of a crime should remain
unpunished, how much more should those be punished who have
committed homicide wickedly and with levity. Thus, as cruel
masters, in their pride, frequently put to death their slaves
without any fault on their part, it is fitting altogether to
extirpate this license, and to ordain that the present law shall
be eternally observed by all. No master or mistress may, without
a public trial, put to death any of their male or female slaves,
or any person dependent upon them. If a slave, or any other
servant, commit a crime which may lead to his capital
condemnation, his master or accuser shall immediately give
information thereof to the judge of the place where the action
was committed, or to the count, or to the duke. After the
discussion of the affair, if the crime be proved, let the culprit
suffer, either by sentence of the judge, or of his master, the
punishment of death which he has deserved; in such sort, however,
that if the judge will not put the culprit to death, he shall
draw up a capital sentence against him, in writing, and then it
shall be in the power of the master to kill him or to keep him in
life.
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In truth, if the slave, by a fatal boldness, while resisting his
master, has struck him or attempted to strike him with a weapon,
or a stone, or by any other blow, and if the master in
self-defence has killed the slave in his anger, the master shall
in no wise suffer the punishment of homicide. But he must prove
that this was the case; and he must prove it by the testimony or
oath of the slaves, both male and female, who were present at the
time, and by the oath of himself, the author of the deed.
Whosoever, from pure wickedness, and by his own hand or that of
another, shall have killed his slave without bringing him to
public trial, shall be branded with infamy, declared incapable of
giving evidence, and doomed to pass the rest of his life in exile
and penitence; and his property shall be given to his nearest
relatives, to whom the law grants it as an inheritance."
This law alone, and the efforts which its passage reveals, do
great honour to the Visigothic legislators; for nothing honours
the laws and their authors so much as a courageous moral conflict
against the bad customs and evil prejudices of their age and
country. We are often forced to believe that the love of power
has a great share in the construction of laws which aim at the
maintenance of order and the repression of violent passions; the
excess of passion borders closely on the rights of liberty, and
order is the hackneyed pretext of despotism. But here, power has
nothing to gain; the law is disinterested; it seeks after justice
only; it seeks after it laboriously, in opposition to the strong
who reject it, and for the benefit of the weak who are unable to
call in its aid--perhaps, even, in opposition to the public
opinion of the time, which, after having had great difficulty in
looking on a Roman as a Goth, had still more in regarding a slave
as a man. This respect for man, whatever may be his origin or
social condition, is a phenomenon unknown to Barbarian
legislation; and nearly fourteen centuries elapsed before the
doctrine passed from religion into politics, from the Gospel into
the codes. It is therefore no slight honour to the Visigothic
bishops that they did their best to guard and transfer into the
laws this noble sentiment, which it is so difficult to
disentangle from the meshes of fact, and which is continually in
danger of being crushed beneath the pressure of circumstance.
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Presence Of A Good Principle.
It continually recurs in their legislation, both in general
precepts and in special regulations; and when it yields, either
before the inconsiderate brutality of Barbarian customs, or
before the despotic traditions of Roman jurisprudence--traditions
with which the minds of the Spanish bishops themselves were
imbued--we still discern, even in these bad laws, the obscure
presence of a good principle labouring to surmount the obstacles
beneath which it has succumbed.
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Lecture XXVI.
Central institutions of the Visigothic monarchy.
True character of the Councils of Toledo.
Amount of their political influence.
The _Officium palatinum._
Prevalence of Roman maxims and institutions, among the Goths,
over Germanic traditions.
Proof of this in the local and central institutions of the
Visigoths.
Refutation of the errors of Savigny and the _Edinburgh
Review_ on this subject.
Conclusion.
Defect Of Visigothic Legislation.
My last lecture, I think, convinced you, gentlemen, that the code
of the Visigoths, taken in itself, and in its intentions as
expressed by written laws, gives the idea of a better social
state, a juster and more enlightened government, a better
regulated country, and, altogether, a more advanced and milder
state of civilization, than that which is revealed to us by the
laws of the other Barbarian peoples. But to this more humane and
wise legislation, to the general principles dictated by superior
reason, there is wanting, as I have already observed, an actual
sanction, an effective guarantee. The laws are good; but the
people, for whose benefit they were enacted, have hardly any
share in their execution, and the business resulting therefrom.
Up to a certain point, the code bears testimony to the wisdom and
good intentions of the legislature; but it presents no evidence
of the liberty and political life of the subjects.
Let us first look at the centre of the State. The single fact of
the political predominance of the bishops, the sole name of the
councils of Toledo, indicate the decay of the old Germanic
customs, and the disappearance of national assemblies. The
Anglo-Saxons had their _Wittenagemot;_ the Lombards their
assembly at Pavia, _circumstante immensâ multitudine;_ the
Franks their _Champs de Mars_ and _Champs de Mai_, and
their _placita generalia_. Doubtless, the existence of these
assemblies entailed scarcely any of the consequences which we
attach at the present day to the idea of such institutions; and
they certainly constituted a very slight guarantee of liberty,
which it was then impossible to guarantee.
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In reality, also, they took a very small part in the government.
Nevertheless, the simple fact of their existence attests the
prevalence of Germanic customs; arbitrary power, though exercised
in fact, was not established in principle; the independence of
powerful individuals struggled against the despotism of the
kings; and in order to dispose of these isolated independencies,
to form them into a national body, it was necessary occasionally
to convoke them together in assemblies. These assemblies live in
the laws as well as in history; the clergy were received therein,
because of their importance and superior knowledge,--but they
were merely received. Far from being their sole constituents,
they did not even form their centre.
In Spain, instead of entering into the national assembly, the
clergy opened the assembly to the nation. Is it likely that the
name only was changed, and that Gothic warriors came to the
council, as formerly to their Germanic assemblies? We have beheld
the same name applied to very different things: for example,
judicial parliaments have superseded political parliaments; but
we have never seen the same thing represented under different
names, especially during the infancy of nations. When existence
consists almost solely of traditions and customs, words are the
last things to change and perish.
The Councils Of Toledo.
The councils of Toledo, then, were actually councils, and not
_Champs de Mai_ or _placita_. Morally, this fact is
probable; historically, it is certain. Their acts have come down
to us, and they are acts of an entirely ecclesiastical assembly,
specially occupied with the affairs of the clergy; and into which
laymen entered only occasionally, and in small numbers. The
signatures of laymen, affixed to the canons of the thirteenth
council, only amount to twenty-six; and in no other are they so
numerous.
These councils were not held, like the _Champs de Mars_ or
_de Mai_ and the _placita generalia_ of the
Carlovingians, at fixed, or at least, frequent periods. Between
the third and fourth councils, forty-four years elapsed; between
the tenth and eleventh, eighteen years. The king convoked them at
his pleasure, or as necessity required. The Visigothic code
ordains absolutely nothing in this respect, either on the kings,
or on the members of the assembly. None of its enactments have
reference, even indirectly, to a national assembly.
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Their Political Influence.
The nature of these councils of Toledo being thus clearly
determined, it remains for us to inquire what influence they
exerted in the government. What were they as guarantees of the
public liberties, and of the execution of the laws?
Before consulting special facts, the very nature of these
assemblies may furnish us with some general indications with
regard to their political influence. The clergy, taking a direct
and active part in the government, were never in a natural and
simple position. I do not speak either of the ecclesiastical law,
or of the special mission of the clergy, or of the separation of
the spiritual from the temporal order, which are questions still
involved in obscurity. I examine facts alone. In fact, in the
States of modern Europe, and at their origin, as well as in later
times, the clergy did not govern, they neither commanded armies,
nor administered justice, nor collected the taxes, nor held sway
over the provinces. They penetrated to a greater or less
distance, by more or less regular means, along the various paths
of political life; but they never traversed them fully, freely,
and thoroughly; politics never were their special and avowed
career. In a word, the social powers, from the lowest to the
highest degree, never were, either in law, or in fact, naturally
lodged in their hands. When the bishops, therefore, in council
assembled, interfered in the civil government, they were called
to regulate affairs which did not concern them, and to occupy
themselves about matters which did not constitute the habitual
and recognised business of their position and life. This
intervention, therefore, necessarily bore an equivocal and
uncertain character. Great influence might have been attached
thereto; but it could not possess any power of energetic and
effectual resistance. If warrior chiefs meet together in assembly
around their monarch, they can rely on their comrades and their
soldiers to support their resolutions; if elected deputies
assemble to vote taxes and ratify the laws of the country, they
are sustained by the number, credit, and opinion of those who
chose and deputed them.
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Position Of The Visigothic Bishops.
If bodies charged with the administration of justice are, at the
same time, called to deliberate upon certain acts of the
sovereign, they may, by suspending the exercise of their
functions, place the government in an almost untenable position.
In these various combinations, a positive force, more or less
regular in its character, stands at the back of the men appointed
to control the supreme power. On the part of the clergy, any
decisive resistance, in political matters, is almost
impracticable, for not one of the effective forces of society is
naturally at their disposal; and, in order to gain possession of
such a force, they must abandon their position, abjure their
character, and thus compromise the moral force whence they derive
their true point of support. Thus, by the nature of things, the
clergy are but ill-adapted to be constituted into a political
power, with the mission of exercising control, and offering
resistance. If they desire to remain within the limits of their
position, they find themselves, at the decisive moment,
unprovided with effective and trusty weapons. If they seek after
such weapons, they throw the whole of society into disturbance,
and incur the legitimate reproach of usurpation. Modern history,
at every step, demonstrates this two-fold truth. When the clergy
have believed themselves strong enough to resist in the same way
as civil powers would have done, they have compromised themselves
as clergy, and have increased disorder rather than obtained
reform. When they have not made such attempts, their resistance
has almost invariably been ineffectual at the moment when it was
most necessary; and as, in such cases, ecclesiastics generally
feel conscious of their weakness, they have not opposed any solid
barrier to the encroachments of power; and, when they have not
consented to be the instruments of its will, they have yielded
after an impotent admonition.
Such was the position of the Visigothic bishops. They had not yet
acquired, in temporal matters, sufficient force to struggle
openly against the crown. They felt that a great part of their
importance was due to their close alliance with the royal power,
and that they would be great losers by breaking off the
connection. They could not, therefore, carry their resistance
very far, or establish in reality an independent political
assembly. They went as far as to sanction the royal power, and to
associate themselves with it by becoming its advisers; but they
attempted nothing beyond.
{233}
Influence Of The Councils Of Toledo.
Facts prove this. These councils of Toledo, whither usurpers came
to be elected, and which gave an entire code to the Visigoths,
exercised in fact, over the great events of this period in Spain,
less influence than was exerted in France by the _Champs de
Mars_ and _de Mai_. They occupied, but did not supply,
the place of the old Germanic assemblies, for they did not
possess their brute force, and were not in a position to
substitute for it any sufficient regular force. Spain was
indebted to them for a much better legislation than that
possessed by other Barbarian nations, and probably also, in their
daily practice, for a more enlightened and humane administration
of justice; but in vain do we seek to find therein the principle
of a great institution of liberty, and the characteristics of a
veritable resistance of absolute power. During the period which
now occupies our attention, the reigning power in the other
States founded by the Barbarians was force--disorderly,
capricious, and unsettled force, sometimes distributed amongst a
multitude of almost independent chieftains; sometimes
concentrated, for a brief space, and according to circumstances,
in the hands of one man, or of a brutal and transitory
aristocracy. No principle was acknowledged; no right was legal;
all was matter of fact, liberty as well as power; and the germs
of free institutions existed in the disorderly relations of these
independent or ill-united forces, although, to speak the truth,
liberty was nowhere visible. In Spain, and through the influence
of the clergy, the government undoubtedly assumed greater
generality and a more regular form; the laws afforded greater
protection to the weak; the administration paid more attention to
their condition; and there was less disorder and violence in
society at large. Broader and more elevated moral ideas
frequently governed the exercise of power. But, on the other
hand, power was constituted under a more absolute form; Roman
maxims prevailed over Germanic traditions; theocratic doctrines
lent their aid to the arbitrary power of the Barbarians. The
councils of Toledo modified and enlightened despotism, but did
not limit the exercise of power.
{234}
The Officium Palatinum.
Some writers have thought they perceived, in another institution
which existed at the centre of the Visigothic monarchy, the
principle and instrument of a limitation of the sovereign
authority. I refer to the _officium palatinum_, a species of
council formed around the king, by the grandees of his Court, and
the principal functionaries of the government. The importance of
this council, and its participation in public business, are
attested by a large number of laws passed either independently of
the councils of Toledo, or in virtue of their deliberation. The
words, _cum omni palatino officio, cum assensu sacerdotum
majorumque palatii, ex palatino officio_, and the like,
frequently occur in the code of the Visigoths. These texts and
the voice of history do not admit of a doubt that the _officium
palatinum_ frequently interfered in the legislation, in the
government, and even in the elevation of kings.
It would be a mistake, however, to regard it as a political
institution, a guarantee of liberty, a means of exercising
control and offering resistance. Power could not, in any case,
subsist alone, by itself and in the air; it must, of sheer
necessity, conciliate interests, appropriate forces, in a word,
surround itself with auxiliaries, and maintain its position by
their aid. In the Roman Empire, this necessity had given birth to
the creation of the Court and of the _officium palatinum,_
instituted by Diocletian and Constantine. In the Barbarian
States, it led the kings to surround themselves with
_Antrustions, Leudes_, sworn vassals, and all those natural
or factitious grandees, who, becoming dispersed at a later
period, and settling in their own domains, became the principal
members of the feudal aristocracy. From these two sources arose
the _officium palatinum_ of the Visigothic kings, with this
difference, that, in this point as in others, Roman institutions
prevailed over Barbarian customs, to the great advantage of
absolute power.
The _officium palatinum_ of the Visigoths was composed of
the grandees of the realm (_proceres_), whom the kings
attached to themselves by donations of lands and offices, and of
the principal functionaries, dukes, counts, vicars, and others,
who held their functions from the kings. This court undoubtedly
formed a sort of aristocracy which was frequently consulted on
public affairs, which sate in the councils, and which furnished
the king with assessors whenever he delivered judgments. The
necessity of things required that it should be so; and as
necessity always entails consequences which far exceed the wishes
of those who are constrained to yield to its sway, there is also
no doubt that this aristocracy, on many occasions, thwarted the
kings who could not dispense with its assistance, and thus
limited their empire.
{235}
Influence Of The Aristocracy.
But human nature is the same amongst barbarian nations as amongst
civilized peoples; and the coarseness of forms, the brutality of
passions, and the limited range of ideas, do not prevent similar
positions from leading to the same results. Now, it is in the
nature of an aristocracy that is closely pent up around the
prince, of a Court aristocracy, to use power for their own
advantage rather than to limit it for the benefit of the State.
It almost inevitably becomes a focus of faction and intrigue,
around which individual interests are set in motion, and not a
centre of controlment and resistance in which the public interest
finds a place. If the times are barbarous and manners violent,
individual interests assume the forms of barbarism and use the
means of violence; if satisfied, they obey with the same
servility as before; if discontented, they poison, assassinate,
or dethrone. Such was the case in the monarchy of the Visigoths.
All usurpations and revolutions in power originated in the
_officium palatinum;_ and when a king attempted to subject
the nobles to the performance of public services, to limit or
even to examine into the concessions which they demanded, that
king lost the empire. Such was the fate of Wamba.
The Visigothic sovereigns had, moreover, in the bishops, a
powerful counterpoise, which they set in opposition to the nobles
of their Court, in order to prevent them from aspiring to entire
independence. The influence of the clergy, too weak to act as an
effectual check on the power of the prince, was strong enough, in
the hands of the prince, to prevent the check from coming from
any other quarter. The reign of Chindasuinth affords an example
of this.
Finally, as I have already said, the predominance of Roman maxims
and institutions in Spain was so great, that the central
aristocracy bore more resemblance to the _officium
palatinum_ of the emperors than to the _Antrustions_ or
_Leudes_ of Germanic origin. Elsewhere, these last were not
slow to obtain sufficient strength to assert their independence,
to isolate themselves from the prince, and finally to become
petty sovereigns in their own domains.
{236}
In Spain, things did not occur precisely thus. It appears that
the _proceres_ received from the king dignities and offices
in greater abundance than lands, and thus acquired less
individual and personal strength. Perhaps the equality granted to
the Roman population, and the fusion of the two peoples, did not
permit so great a dilapidation of property and distribution of
domains as that which took place in France. What would have
occurred if the monarchy of the Visigoths had not been
interrupted in its course by the conquest of the Arabs? Would the
dismemberment of the royal power and the dispersion of the Court
have led to the dispersion and independence of the landed
aristocracy? We cannot say. This much is certain, that the
phenomenon which was exhibited in France, at the fall of the
Carlovingians, did not occur among the Visigoths, in the eight
century: the _officium palatinum_ had neither destroyed nor
divided the royal power, and made but feeble attempts to limit
it.
Character Of The Goths.
One fact must be added, which, though universally attested, is
not explained in a satisfactory manner. Of the various German
peoples, the Goths preserved in the smallest degree their
primitive institutions and manners. The Ostrogoths in Italy,
under Theodoric, like the Visigoths in Spain, allowed Roman
habits to prevail amongst them, and permitted their kings to
arrogate to themselves the plenitude of imperial power. We even
find, among the Goths of Italy, still fewer traces of the
existence of the old national assemblies, and of the
participation of the people in the affairs of the State.
It would therefore be vain to seek, in the Visigothic monarchy,
for the principles, or even the remnants, of any great
institution of liberty, or of any effectual limitation of power.
Neither the councils of Toledo, nor the _officium palatinum_
present this character; but there resulted from them something
that did not result from the _Champs de Mars_ and _de
Mai_, or from the Saxon Wittenagemot,--a code of laws, which,
for that period, are very remarkable for their large
philosophical views, their foresight, and their wisdom; but this
code, though it indicates the handiwork of enlightened
legislators, nowhere reveals the existence of a free people. It
contains even fewer germs or monuments of liberty than the rudest
of Barbarian laws; and the royal power, thus considered as in
itself the centre of the State, appears as much more absolute in
right, and much less limited in fact, than it was anywhere else.
An examination of the local institutions of the Visigoths will
lead us to the same result.
{237}
Local Institutions Of The Visigoths.
Local institutions are the most real, perhaps the only real,
institutions of Barbarian peoples. They do not possess sufficient
vitality or enlargement of mind to originate or preserve general
institutions. The material contiguity of individuals is an almost
indispensable condition of the existence of society amongst them;
it is therefore in the local institutions of the German peoples
that we must seek the history of their political life. The forms
of these institutions; and the modifications which they
underwent, exercised far greater influence over their destiny,
than the revolutions which occurred in central institutions, such
as the Wittenagemot, the _placita generalia_, and the royal
power.
As you have already seen, the laws of most of the German peoples
present three co-existent and conflicting systems: institutions
of liberty; institutions of territorial patronage, which gave
birth to feudalism; and monarchical institutions. The assembly of
free men transacting the general business, and administering
justice in every district; the landowners, exercising authority
and jurisdiction throughout their domains; the king's delegates,
whether dukes, counts, or others, also possessing authority and
jurisdiction: such are the three powers which have reciprocally
contested the government of localities, and whose existence and
vicissitudes are proved by the laws as well as by facts.
The code of the Visigoths presents no trace whatever of the first
of these systems, and scarcely any of the second; the third
immensely predominates. There was no _mallum_, no
_placitum_, no assemblies of free men in the provinces; no
enactment ordains, or even refers to them. Scarcely does there
exist any indication of the power of the patron over his client,
of the landowner over the inhabitants of his domains. The law
which I quoted in my last lecture, with reference to slaves,
proves that, even in their case, the jurisdiction belonged to the
royal judge of the district.
{238}
Various Kinds Of Magistrates.
The _Forum judicum_ mentions a large number of local
magistrates who were invested with the power of administering
affairs and distributing justice. "As there is a great variety in
the means of remedying evils and terminating affairs, let the
duke, count, vicar, conservator of the peace (_pacis
assertor_), _tinfadus, millenarius, quingentenarius,
centenarius, decanus, defensor, numerarius_, and those who are
sent to any place by order of the king, and those who are
accepted as judges by the agreement of the litigant parties,--
let all persons, in fine, of whatever order they may be, who are
regularly invested with power to judge, and each person in such
proportion as he has received power to judge, equally obtain from
the law the name of judges, in order that, having received the
right to judge, the duties as well as the advantages connected
with that right may devolve upon them."
It is difficult to determine with precision the different
functions of all these magistrates, the hierarchy which existed
among them, and the manner in which each of them received and
exercised his power. Those who belonged to towns, as the
_defensor_ and the _numerarius_, were certainly elected
by the clergy and inhabitants. Several others, as the
_millenarius_ and _centenarius_, seem to have been
appointed by the dukes and counts of the provinces; but however
this may be, nothing indicates that they received their authority
in a popular and independent way; the opposite principle is
formally laid down in these terms: "No one shall be permitted to
judge suits, except those who have received power from the prince
to do so, or those who have been chosen as judges, by agreement
of the litigants; the choice of these last shall be made in
presence of three witnesses, and shall be attested by their mark
or signature. If those who have received from the king power to
judge, or those who exercise judicial power by commission from
the counts or other royal judges, have charged, by writing, and
according to the prescribed rules, other persons to fill their
places, these last shall exercise, in the regulation and decision
of affairs, a power similar to that of those by whom they were
appointed." Thus, all the judges, all the local officers,
received their power from the king or his delegates. Of the three
systems of institutions, whose co-existence and conflict are
manifested amongst most of the German peoples, the monarchical
system is the only one with which we meet in the code of the
Visigoths.
{239}
In addition to the permanent judges, established in various
localities, the kings had power to send special commissioners,
either to restore order in disaffected provinces, or to give
judgment in cases of particular importance. Criminal as well as
civil affairs were submitted to the decision of the royal judges.
All these judges received salaries from the king; but they also
levied such enormous fees on the litigants, that the fees
frequently amounted to one-third of the value of the object in
litigation, A law was passed, limiting them to one-twentieth. Any
who thought they had reason to complain of the decision of the
judge might appeal, either to the duke or count of the province,
or to the king himself. If the appeal was deemed well-founded, in
addition to gaining the cause, the judge had to pay the appellant
a sum equal to the value of the object in litigation. If the
judgment was confirmed, the appellant had to pay the same amount
to the judge, and if he could not do so, he was condemned
publicly to receive a hundred lashes.
Constitution Of Judicial Authority.
Up to this point, nothing in the constitution of judicial
authority exhibits any of those guarantees of liberty contained
in the laws of the other Barbarian peoples. Nothing discloses any
remnant or even remembrance of the old forms of judgment by the
assembly of free men, _per Rachimburgos, bonos homines_, &c.
Some passages of the _Forum judicum_, however, prove that
the judges, at least, had assessors. The fourth council of Toledo
formally prohibits the kings from administering justice alone;
and several texts allude to _auditores_. Most learned men,
and amongst others Heineccius, are of opinion that the assessors
were not mere councillors; and that the judge was bound to take
the opinions of a majority of them. I am inclined to think so
too. Several texts, however, formally indicate that the judge was
at liberty to take assessors or not, as he pleased.
Laws Against Bad Judges.
In the absence of those real guarantees of liberty, which
originated elsewhere in the more or less effectual intervention
of the freemen in the judgment of cases, the _Forum judicum_
contains a multitude of precautions or laws against bad judges.
{240}
In case of appeal to the count or king, if it were proved that
the wrong decision of the judge was occasioned by malice,
corruption, or prevarication of any kind, and if he were unable
to pay the appellant the requisite sum, he was given to him as a
slave, and condemned to receive besides fifty lashes in public.
He was absolved from all penalty, however, if he proved, under
oath, that his decision was pronounced in error or ignorance. The
judges who neglected to prosecute the licentious were punished
with a hundred lashes, and fined 300 _solidi_. The priests
and bishops everywhere were enjoined to exercise a strict
surveillance over the judges; and as the former then derived
their chief strength from their superior knowledge and their
protection of the weak, it is not unlikely that this guarantee
was effective.
But all this was defective, as you perceive, by the radical
defect of the system of pure monarchy, which gives, as the only
guarantee for the good conduct of the depositaries of power, the
surveillance and authority of superior depositaries placed in the
same position, and invested with the same functions.
... Sed quis custodiet ipsos
Custodes? ...
The true guarantees of liberty can only reside in the concurrence
of collateral and independent powers, none of which is absolute,
and which mutually control and limit each other. Of this the
_Forum judicum_ affords us no trace, at any stage in the
long hierarchy of the government.
The local government of the Visigoths, then, presents still fewer
institutions containing any active principle of liberty, any real
force of control or resistance, than are found in their political
_régime_, and at the centre of the State. Such is, at least,
the unavoidable result to which we are led by an examination of
the general and definitive code of this nation.
This result has appeared so singular, so opposed to German
customs, and to the state of things among other peoples of the
same origin, that hardly any man of erudition has been willing to
read it in the _Forum judicum_; and that those even who have
failed to find in this code any proof of the existence of free
institutions, and almost any trace of old Barbarian institutions,
have striven to discover them elsewhere in Spain at this period.
{241}
Views Of M. De Savigny.
I shall say nothing of Abbé Mariana, who, in his _Teoria de las
Cortes_, is determined to discover, in the councils of Toledo,
not only the Spanish Cortes of the thirteenth and fourteenth
centuries, but also all the principles and guarantees of
liberty--all, in fine, that constitutes a national assembly and a
representative government. I have already demonstrated the moral
improbability and the historic unreality of the fact. Two more
learned men than Abbé Mariana, and less inclined than he to find
what they seek, have thought that they perceive, in the _Forum
judicum_, proofs that the purely monarchical system,
associated with the theocratic system, did not prevail so
completely among the Visigoths; and that they can discover among
them evidences of effective and extended public liberties: I
refer to M. de Savigny, in his _History of Roman Law in the
Middle Ages_, and to a writer in the _Edinburgh Review_,
[Footnote 18 ] in an article on _The Gothic Laws of Spain_.
I do not think that the researches of these two learned critics
destroy the general results which I have just laid before you.
They nevertheless contain many curious facts hitherto little
noticed, and which throw much light on the study of the political
institutions of the Visigothic monarchy. I shall, therefore, make
you acquainted with them, and examine the consequences to which
they lead.
[Footnote 18: Edinburgh Review, vol. xxxi., pp. 94-132.]
M. de Savigny, when investigating the traces of the perpetuation
of the Roman law after the fall of the Empire, expresses himself
in these terms, in reference to the Visigoths: "Upon the
constitution of this monarchy," he says, "we possess sufficiently
complete information in the _Breviarium Aniani_, who, about
the year 506, that is, nearly a century after the foundation of
the State, drew up the Roman law into a sort of code for the
ancient inhabitants of the country. This code consists, as is
well known, of two parts: one contains texts quoted word for word
from the Roman law; the other an interpretation specially
prepared on this occasion. With regard to the texts quoted from
the Roman law, we cannot attach great importance to them, when we
speak of the real state of things at the period of this
publication; as they were drawn from sources much more ancient,
expressions and even entire phrases were necessarily retained
which had reference to various circumstances of a social state
that had already passed away and fallen into desuetude; the
interpretation was intended to explain this disagreement.
{242}
But this interpretation, drawn up _ad hoc_, is, on the other
hand, very trustworthy, especially when it does not implicitly
follow either the words or the sense of the text, for then we can
no longer regard it as a servile and thoughtless copy, especially
in what relates to matters of public law. It is impossible to
believe that real establishments, institutions set before the
eyes of all, and with which all might be acquainted, could have
been mentioned unintentionally and described without an object.
Now, in this interpretation, the Roman _præses_ has entirely
disappeared; but the municipal community, with its particular
jurisdiction and its decurions taking part in the administration
of justice, subsists in all its integrity: it even appears to
possess more individual consistency and independence than it had
enjoyed under the emperors.
The Defenders Of Cities.
"The general principle of the _defensores_, of their duties
and the mode of choosing them, is explained in the
interpretation, as well as in the text of the Theodosian code.
According to the text, the governor of the province was not to be
burdened with the judgment of petty offences; but it does not
mention who was to judge them, whereas the interpretation
expressly names the _defensor_. According to the text, the
introduction of a civil suit might take place either before the
governor, or before those who had the right to draw up the
necessary acts; the interpretation adds the _defensor_. ..."
M. de Savigny then quotes a number of other examples to prove the
maintenance, and even extension, of the functions of the
defenders of the cities. "Other passages," he continues, "have
reference to the _curia_, the decurions, and even to the
citizens in general. The system of decurions, in general, is
received in the _Breviarium_, with very few modifications,
but merely great abridgement. To one passage of the text which
casually mentions _adoption_, the interpretation adds, as a
commentary, that it is the choice of an individual as a child,
made in presence of the _curia_. The Visigothic
jurisconsult, Graius, says, that _emancipation_, which
formerly took place before the president, was, at the period at
which he wrote, performed before the _curia_."
{243}
Importance Of The Curia.
"The text determines by whom tutors were appointed at
Constantinople, namely, by the prefect of the city, ten senators,
and the prætor, whose duty it was to watch over the interests of
the pupils: the interpretation substitutes in their place the
judge, with the chief men of the town. The text speaks of the
necessity of a decree to authorize the alienation of the property
of a minor: the interpretation adds, that this decree must be
obtained from the judge or the _curia_. The text ordains
that, at Constantinople, wills should be opened by the same
office that received them: the interpretation substitutes the
_curia_ in its place. According to the text, donations
should be registered either before the judge (the governor of the
province), or before the municipal magistrate (the
_duumvir_): the interpretation substitutes the _curia_
for the municipal magistrate--which does not, in reality, alter
the sense of the law, but which proves what is demonstrated by
many other passages, that the general point of view was
completely changed; anciently the chief municipal authority, and
especially jurisdiction, was considered, according to Roman
maxims, to be a personal right of the magistrate: according to
the interpretation, it belonged less to the _defensor_
himself, than to the _curia_ taken collectively. ... Under
the emperors, the _honorati_, that is, those who had
occupied high municipal dignities, had a seat of honour near the
governor of the province when he administered justice; they were
only expected to abstain from being present when their own causes
were under consideration. The interpretation applies this to the
curials; an application which is remarkable in two respects,
first, because it proves that the curials were held in great
consideration, and secondly, because this does not merely refer
to the possession of a seat of honour by them, but to an actual
participation in the jurisdiction of the municipal judge, that
is, of the _duumvir_ or _defensor_. ... The text of the
code ordains that, out of Rome, in order to pronounce sentence on
a criminal accusation brought against a senator, five senators
shall be chosen by lot: the interpretation makes this rule
general, and requires five men to be chosen from the leading
members of the same rank as the accused person, that is,
decurions or plebeians, according to the condition of the accused
person himself. Finally, the text ordained that every judge
should receive his _domesticus_ or _cancellarius_ from
the choice of the principal persons employed in his chancery: the
interpretation retains the rule, merely substituting the
burgesses of the city for the persons employed in the chancery."
{244}
Objections To Savigny's Theory.
Such are the traces of municipal liberties which M. de Savigny
discovers in the _Breviarium Aniani_, and which he considers
as the common and permanent law of the Visigothic monarchy. They
prove, in fact, not merely the maintenance, but also the
extension and enfranchisement, of the rights and guarantees
possessed by the inhabitants of the towns before the settlement
of the Barbarians. But strong objections may be raised against
the importance which the author attaches to these texts, and the
extent of the conclusions which he deduces therefrom.
I. The _Breviarium Aniani_ does not contain the common and
permanent law of the Spanish monarchy of the Visigoths. It only
gives the special legislation of the Roman subjects of the
Visigothic kings, when the kings resided at Toulouse, and had as
yet only uncertain possessions in Spain; when the South of Gaul
constituted the bulk, and almost the whole, of the kingdom. There
is nothing to prove that all that is contained in the
_Breviarium Aniani_, towards the end of the fifth century,
for the benefit of the Romans of Southern Gaul, subsisted in
Spain until the eighth century, for the benefit of the Goths and
Romans, when merged into a single nation. The silence of the
_Forum judicum_, which is the true code of the Spanish
Visigoths, upon most of these arrangements, proves more against
their maintenance than is demonstrated in their favour by the
text of the _Breviarium_, which was drawn up in another
place, at an earlier period, and for a portion only of the
people.
Abolition Of The Breviarium Aniani.
II. About a hundred and fifty years after the publication of the
_Breviarium_, the Goths and Romans were united into a single
nation. The collection of laws, successively augmented under the
different reigns, and completed by Chindasuinth, became the sole
code of the kingdom; all other laws were abolished, and the
_Breviarium_ was necessarily included in this abolition. The
text of the law of Recesuinth is formal: "That absolutely none of
the men of our realm be permitted to lay before the judge, for
the decision of any affair, any other collection of laws than
that which has just been published, and according to the order in
which the laws are inscribed therein; and this, under penalty of
a fine of thirty pounds of gold to our treasury. Any judge who
should hesitate to decline any other book that might be presented
to him as suited to regulate his decision, will be punished by
the same fine."
{245}
M. de Savigny foresaw this objection; and without absolutely
dissembling it, he has tried to weaken it by not quoting the text
of the law of Recesuinth, and by speaking only of the attempts
made by the Visigothic kings, that Spain should contain only a
single nation, and be governed by a single code. These evasions
are in striking contrast with his usual candour. He then makes
use of the existence of the _defensores_, proof of which is
found in the _Forum judicum_, to assume the maintenance of
all the prerogatives and liberties attributed to them by the
_Breviarium_. This conclusion is evidently hasty and
excessive.
I do not dispute that the towns of Spain were able to retain, or
indeed that they did necessarily retain, some institutions, some
guarantees of municipal liberty. I should not infer their
absolute disappearance from the silence of the _Forum
judicum_. The despotism of the Barbarian kings, however
careful it may have been to gather the heritage of Roman maxims,
was neither as wise nor as circumstantial as that of the
emperors. It allowed the _curiæ_ and their magistrates to
continue in existence, and these petty local powers assuredly had
more reality and independence under its rule than they had
possessed under the Empire. The clergy, principally dwelling in
the towns, and bound by strong ties to the Roman race, was itself
interested in protecting them, and the more so, because it
naturally placed itself at the head of the municipalities. Thus
much is certain, that the remnants of institutions of surety and
liberty which existed there, occupy no place in the written laws,
although these laws are much more detailed than those of other
Barbarian peoples, and embrace the whole civil order. They could
not, therefore, be considered as forming a part of the general
constitution of the kingdom; they neither modified its political
character, nor changed the results of the principles that
prevailed therein.
{246}
Gothic Laws Of Spain.
If M. de Savigny has looked for the institutions of the Visigoths
in an epoch anterior to the definitive establishment of their
true monarchy, and in a collection of laws abolished by the
_Forum judicum_, the author of the dissertation contained in
the Edinburgh Review has addressed his inquiries to times and
documents posterior by four or five centuries to the destruction
of the kingdom of the Visigoths by the Arabs; and by transporting
the consequences which he has obtained therefrom into the epoch
which occupies our attention, he has fallen into an error still
less supported by facts than was that of M. de Savigny. His
researches and inferences are the following:--
"It must not be supposed that the whole body of the law of the
Visigoths appears in the twelve books of their code. They had
their common or traditionary law, still existing in unwritten
usages and customs, as well as their written law; and we are
supported by analogy in asserting that this common law often
spoke, when the statute law was silent. It outlived the
monarchy; and we now collect it from the _Fueros_ or
ancient customs of Castile and Leon. The customs in question
are preserved in the charters of the towns, which gave bye-laws
to the inhabitants, confirming the unwritten common law of the
country, sometimes with greater or lesser modifications in the
detail, but agreeing in general principles. We equally discover
them in the acts of Cortes, which, to borrow the expression of
Sir Edward Coke, are often 'affirmances of the common law.' The
traditionary Fueros of Castile also formed the basis of the
_Fuero Viejo de Castilla_, which received its last
revision under Peter the Third. And even Alonso the Wise,
though he planned the subversion of the ancient jurisprudence
of his kingdom, admitted into the Partidas such of those
_Fueros de España_ as relate to the tenures of land, and
to military service. Consisting of ancient usages, neither
refined by the learning of the councils nor restrained by the
power of the kings, the Fueros of Castile and Leon bear a
nearer affinity to the jurisprudence of the Teutonic nations
than the written code. The water ordeal is noticed only once,
in a law newly amended by Flavius Egica. But ordeal by
compurgation, the most ancient form of trial by jury, and the
battle ordeal, do not appear at all. Neither do we find any
notice of the custom of returning military leaders by the
_verdict of a jury_. All these customs, however, were
Fueros of Spain in the Middle Ages. Nor could they possibly
have then existed, had they not been preserved by immemorial
usage and tradition."
{247}
Election Of Adalides.
The author then passes these ancient usages in review. The first
to which he refers is the appointment of military leaders by a
jury. He traces this custom back to the forests of Germany: and
then shows how it could not fail to succumb universally beneath
the establishment of the feudal system, and in consequence of the
hierarchical subordination of persons and lands. He discovers
traces of this in the nomination, by the people, of the
Anglo-Saxon _heretochs_ and _constables_, who were at
first military officers; and also in the election of the kings of
Norway by the verdicts of twelve of the principal men of each
province. He then returns to Spain, "where," he says, "we shall
find our old Gothic juries employed in electing the chief
officers of the army and navy of the Castilians, the Adalid, the
Almocaden, the Alfaqueque, and the Comitre. Who was to be the
Adalid? The question must be answered in the words of the wise
king Alonso. It is said by the ancients that 'the Adalid should
be endowed with four gifts--the first is wisdom, the second is
heart, the third is good common sense, and the fourth is loyalty;
and when a king or any other great lord wishes to make an Adalid,
he must call unto himself _twelve of the wisest_ Adalides
that can be found, and these must _swear_ that they will
_truly say_, if he whom they wish to choose to be an Adalid
hath the four gifts of which we have spoken, and if they answer
_yea_, then they are to make him an Adalid.'" Here we have
clearly an inquest by twelve men giving their verdict upon oath.
If it happened that twelve Adalides could not be found, then a
kind of _tales de circumstantibus_ was added to this special
jury of Adalides. The king or lord was to make up the full number
of twelve with other men well approved in war and deeds of arms,
and their verdict was as good as if they had been all Adalides.
And he who dared to act as an Adalid without being fully elected,
was to suffer death. "It was advised in ancient times," says
Alonso, "that they were to have the qualities before mentioned,
because it was necessary that they should possess them, in order
to be able to guide the troops and armies in time of war, and
therefore they were called Adalides, which is equivalent to
_guides_ (_que quiere tanto decir como guiadores_)."
{248}
Admission Of An Adalid.
The author is, therefore, of opinion that this word comes from
_adal, adel_, noble, and _leid, lead, leiten_, to guide
or conduct. The Adalid was the guide or chief of the
_Almogavars_, or cavalry soldiers. The _Adalid mayor_
was commander-in-chief of all the Almogavars, or Castilian
cavalry.
After his election by this species of jury, the Adalid was thus
solemnly admitted to his office. "The king gave him rich
garments, and a sword and a horse, and arms of _wood and
iron_, according to the customs of the country. By a _rico
hombre_, a lord of knights, the sword was to be girt, and then
a shield was placed upon the ground, the future Adalid stepped
upon it, and the king drew the sword out of its scabbard, and put
it naked in his hand. And now as many of the twelve Adalids as
can assemble round the shield, grasp its edge, and lift him up as
high as they may: they turn his face towards the east.--In the
name of God," exclaims the Adalid, "I defy all the enemies of the
faith, and of my lord the king, and of his land." And, thus
speaking, he lifted up his arm, and struck a stroke downward, and
he then struck another stroke across, thus describing in the air
the sweet and holy sign of redemption, and he repeated this
challenge four times towards each of the quarters of the world.
Then the Adalid sheathed his sword, and the king placed a pennon
in his hand, saying, "_I grant unto thee that henceforward thou
art to be an Adalid._" An Adalid might have risen to command
from the lowest rank in the Castilian army. He might have been a
_peon_ or foot-soldier, but he became the fellow and
companion of the hereditary nobles, the lords of vassals, and the
_ricos hombres._" In this ceremony, the author perceives a
repetition of the forms used at the election of kings among the
Germans, or at least at the choice of military leaders; _duces
ex virtute sumunt_.
{249}
Election Of Officers By A Jury.
I would by no means affirm that there does not exist, in this
mode of choosing captains, in the concurrence of these twelve
jurymen, and even in the number twelve itself, any remnant of old
Germanic customs. This much is evident, that what has just been
described was much rather a sort of chivalric ceremony in
connection with the elevation of a man to a superior rank, than
the election of a barbaric chief; all the forms, all the details
of the elevation of an Adalid, remind us much more of chivalric
usage than of Germanic custom; and it is a strange anachronism to
suppose that all this took place, five hundred years before,
among the Visigoths, notwithstanding that no mention is made of
it in any historic monument, and, what is still more conclusive,
notwithstanding that the general state of manners at that time
gives no hint of anything of the kind. It is much more probable
that these customs originated among the Goths during their
struggle against the Arabs, in the mountains of Northern Spain,
and in consequence of the new direction of mingled feudalism and
liberty, which was imparted to their manners by this new
position.
The _Almocadene_ or captain of foot soldiers, the
_Alfaqueque_ or officer employed to treat for the ransom of
captives from the Moors, and the _Comitre_ or captain of a
ship, were appointed in a similar manner, and by the
recommendation of a jury composed, not of members of the class to
which the candidate belonged, but to members of the class to
which he aspired. This circumstance alone settles the question;
for it is a result of chivalric, and not of Barbarian manners; it
reminds us of the squire who was dubbed knight by knights, and
not of the warrior who was chosen or judged by his peers.
I shall not follow the author in his researches on ordeal by
boiling water and by fire, or upon trial by combat. Although we
meet with traces of these customs in the old monuments of some
Barbarian legislations, they were not the common law of modern
peoples, during the first epoch of their establishment on the
Roman territory. It was at a later period, and by the influence
either of the corruption of religious ideas by superstition, or
of the military organization of the feudal system, that they
became developed, recognized, and formed into a veritable
jurisprudence. The general facts of Europe do not, therefore,
authorize us to conclude that, because they existed among the
Spaniards in the fourteenth century, they also existed among the
Visigoths in the seventh century. The almost absolute silence of
the historic monuments of the first epoch, here retains all its
authority.
{250}
Compurgation.
The facts relative to compurgation, by the oath of a certain
number of witnesses, are more important and more curious.
"Compurgation," says our author, "is directed in express terms in
all the Teutonic laws; but it does not appear to have been
admissible in trials conducted according to the forms prescribed
by the _Fuero juzgo_. Yet afterwards, this ordeal was widely
spread as a _fuero_, both in civil and criminal trials.
Though discountenanced by the legislature, it was retained in
practice; and a forcible illustration is thus given of the
stubbornness with which the Goths adhered to their usages and
customs. _Trial by jury_, through it, in its germ was felt
to be a benefit."
"As an ancient and general usage of Castile, the trial is
sanctioned in the _Fuero Viejo_. As a local custom or
bye-law of the cities of Castile and Leon and their dependencies,
it was very frequently established, or rather _declared_, by
the charters granted by their founders.
"Three thousand _sueldos_, according to the _Fuero
Viejo_, were paid for dishonouring the palace of the king, or
spoiling his castle; and five hundred _sueldos_ was the
price of the head of the _merino_, or the composition for
scandalizing him; and every man who wished to save himself from
the payment of these mulcts, was to defend himself by the oath of
_twelve men, for such was the usage of Castile in the old
time_. When accused of the death of another _fijo
d'algo_, the suspected noble defended himself by the oath of
eleven other _fijos d'algo_, himself _the twelfth_,
and, as true knights, they were all _sworn_ upon the Gospel
Book, with their spurs upon their heels. There were two insults
only which gave a Dueña, or a squire, the right of complaining
that a _fijo d'algo_ had scandalized them, viz., a blow or a
wound, or the robbery of their mules or garments. Within three
days, the party so injured by a caitiff knight was obliged to
complain of the offence, and to disclose the injury to the
_fijos d'algo_ of the town, the _labradores_, and to
the inmates of the _fijos d'algo_, if there were any, and to
cause the town-bell to be rung, saying, "such a one hath thus
dishonoured me."
{251}
These formalities having been observed, the _fijo d'algo_
was bound to answer the complaint; reparation was made if he
confessed it, by forfeiting five hundred _sueldos_, the
price of his own head; but if he denied it, he was to clear
himself by the oath of eleven other _fijos d'algo_, himself
the _twelfth_. But a _labrador_ accused of injuring a
_fijo d'algo_ was not to be admitted to defend himself by
his peers; and he was unfairly compelled to swear with eleven
_fijos d'algo_, himself the twelfth.
"These customs are taken from the general code. In peculiar
districts, compurgation was so much in vogue, that compurgatrixes
were allowed to female culprits. At Anguas, as well as in other
towns, a woman charged with theft could defend herself by the
oaths of a jury of other women. More whimsical was the Fuero of
Cuenca, which is passing strange, both for the spirit of the law
and the terms in which it is expressed. If perchance any husband
suspected that his wife had planted horns upon his head, although
he was not able to prove the fact by evidence, the wife was to
justify herself by swearing to her chastity, with twelve good
wives of the neighbourhood; and if they pronounced her to be
pure, her husband was obliged to be persuaded that she was so.
"The customs of St. Sebastien in Guipuscoa, allowed an odd kind
of proceeding, resembling the assessment of damages by the
verdict of a jury. The ravisher was to pay the price of
virginity, or he was to marry the object of his ungovernable
passion; which punishment, as the charter wisely observes, 'is
fully equal to a fine.' But if she, who had been a maid, was
unworthy of becoming his wife, he was to provide her with such a
husband as she might have reasonably expected to have obtained
previous to her mishap, 'according to the estimation of the
alcalde, and of twelve good men of St. Sebastien.'
"The fullest directions concerning the use of the ordeal are
contained in the charter of Molina. Don Molrique de Lara
incorporated the town of Molina, the seigniory of the noble house
of Lara, in the year 1152. His charter may be quoted as the most
valuable record concerning the ancient municipal jurisprudence of
Castile which has yet been published, as it displays the entire
constitution and government of a Castilian town. ... Fines,
according to the old Gothic law, were enacted at Molina for
wounds and maims. The accuser was to support his charge by three
'_vecinos_' or burghers of the town, if the offence was
committed within its walls.
{252}
Two _vecinos_ sufficed if without. And, in default of full
proof, the culprit either swore with twelve _vecinos_, or
fought with the accuser; but the latter had the choice of the
ordeal. ... When a murder had been committed, if one of those
engaged in the fray took the guilt on his own head, saying,
'_I killed him_,' the others were 'to save themselves with
twelve true burghers,'--_los otros salvense con doce vecinos
derecheros_. It might happen, that none would confess the
crime; and as all were then equally liable to suspicion, the
relations of the dead man were at liberty to select any one as
the murderer, 'just as they thought fit;' after which the
supposed murderer named eleven relations of the slain, and
these, together with the accuser, swore to his being guilty or
not guilty. Unanimity was required; and if one or two would not
swear, that is to say, if they could not agree with the
majority, each one who was so dissentient swore with twelve,
that neither he, nor any one for his use, had received any
bribe; then he was discharged. But if the defendant did not
'fall' by the withdrawing of his juror, he was at liberty to
name another. This proceeding is remarkable; a new aspect is
given to the ordeal by calling in the compurgators to swear with
the accuser instead of the accused; and in this form it is,
perhaps, more closely assimilated to a jury-trial. It may be
observed, that a practice once prevailed in England of
withdrawing the dissentient jurors, and replacing them by
others, till an unanimous verdict was obtained."
Such are the facts which the author of these researches has
collected on the existence of ancient Germanic customs, or
analogous usages, in the towns of Castile and Leon, dating from
the twelfth century. He unhesitatingly concludes therefrom that
these same customs existed in the sixth and seventh centuries
among the Spanish Visigoths, and formed a part of their
institutions.
Errors Of The Preceding Theory.
It is inconvenient to prove that facts are not true, for it
devolves on him who affirms them to prove that they are so; and,
in such a case as this, when we speak of epochs separated by five
or six centuries, and by such a revolution as the dispossession
of a people and a foreign conquest, inductions are not
sufficient.
{253}
The _Forum judicum_ is absolutely silent upon the
appointment of military leaders, and upon compurgation by juries;
nay, more, this latter institution is incompatible with the
arrangements of this code in reference to judges and the
administration of justice. No other contemporary authority
contradicts the _Forum judicum_. Must we, upon the authority
of facts of much more recent date, and which refer to an entirely
different state of civilization, refuse to believe proofs so
direct, and testimonies so positive?
I am aware of all that may be said about the disorders of these
times, the continual gaps in the laws, and the disposition of
legislators to omit precisely those usages which were most simple
and universal, as though they had no need to be consecrated or
even indicated by formal enactment. It is, in fact, very possible
that the practice of compurgation by juries was not completely
unknown to the Visigoths; it recurs in all Germanic customs, and
it may not have disappeared either entirely or all at once, even
after the introduction of a code derived principally from the
Roman laws. But it is impossible to believe, in spite of this
code, that it continued to be the common law, the fundamental
institution, the veritable judicial system of the nation.
It is more easy to explain, with likelihood, the existence of
these practices among the Spanish Goths of the twelfth century,
than to justify, without proofs, or rather in opposition to all
evidence, the arbitrary supposition of their prevalence among the
Visigoths of the seventh. Such institutions have in themselves
something of spontaneity; they correspond to a certain degree of
civilization, to a certain state of social institutions; we meet
with them under forms more or less similar, but fundamentally
analogous, not only among all the Germanic peoples, but also
among nearly all those barbaric peoples which, scarcely issued
from a nomadic life, begin to establish themselves on a new
territory, after they have conquered it. Now, the destruction of
the monarchy of the Visigoths by the Arabs suspended the course
of the institutions which it had received two centuries before,
broke off the councils of Toledo, crushed or greatly diminished
the predominance of the clergy, and, in fine, put a stop to the
civilization which had commenced, and gave to affairs an entirely
new direction.
{254}
Birth Of Free Institutions.
Scattered among the mountains, frequently wandering, separated
into various bands, those of the Goths who did not submit to the
conquerors, returned, so to speak, towards the life which their
ancestors led in the forests of Germany. Roman institutions,
Roman maxims, all that collection of laws and ideas which they
had received from the clergy, and which had prevailed over their
own habits, disappeared almost necessarily in this shock, or at
least were retained only by those Goths who remained under the
dominion of the Mussulmans. The companions of Pelagius, up to a
certain point, became Germans once more, from sheer necessity. It
was after this involuntary return to their primitive condition,
and, by consequence, to their ancient institutions, that they
resumed the offensive against the Arabs, and reconquered Spain by
degrees, bringing back with them those political and judicial
customs, usages, and practices, which they had partially
regained. Free institutions, moreover, could not fail to regain
vitality at this period; for they alone can supply strength in
times of danger or misfortune. It was not in the power of the
customs of the _officium palatinum_, and of the maxims of
the councils of Toledo, to restore the Goths to their subjugated
country, and reinstate the descendants of Chindasuinth upon the
throne of their fathers. The participation of the people in
public affairs, the sternness of Barbarian manners, and the
energy of irregular liberty, could alone produce such effects.
There is every reason to believe that the institutions of Spain,
after the re-establishment of the kingdoms of Castile, Leon,
Arragon, &c, were new institutions, and the result of the new
position of the Goths, much more than the legacy of the ancient
Visigoths. We find proofs of this in the general Cortes of the
kingdom, in the constitutions and liberties of the towns, in the
whole political order of the State, which has no connection
whatever with the old monarchy, and follows much more naturally
as a result of the condition and necessities of new monarchies.
The political system established by the councils of Toledo and
the _Forum judicum_ could not have taken deep root; it fell
before necessities which it was unable to meet.
{255}
Conclusion.
The _Forum judicum_ itself would perhaps have completely
succumbed, had it not continued to be the law of those Goths who
had submitted to the yoke of the Moors; it moreover regulated
civil order, which is always more firmly fixed, and less
influenced by revolutions. It therefore continued, in this
respect, to be the general law of Spain; whilst political order
assumed a new form and was regulated by other institutions.
The _Forum judicum_ and contemporary authorities are the
only true source at which we can study the political institutions
of the ancient Visigoths; a source which is doubtless incomplete,
and which does not inform us of all that existed; a source which,
probably even, especially neglected to gather up what still
remained of Germanic manners and habits, but which it is
impossible to repudiate in order to admit facts and general
institutions which are directly contrary to it. The consequences
which I have deduced from these original and contemporary
authorities, therefore, still subsist, and determine the true
political system of the monarchy of the Visigoths. The imperial
government, and ecclesiastical theories, were its constituent
elements. These elements prevailed over Germanic customs. They
were doubtless modified in order that they might be adapted to a
Barbarian people; but, by modification, they gained dominion, and
became the general form, the fundamental law, of the State. If
the Spanish Goths afterwards entered upon a course more analogous
to that pursued by other modern nations of the same origin, it is
in the invasion of the Arabs, in the second conquest of Spain by
the re-Germanized Goths, and in the effects of this great
revolution, but not in the institutions of the monarchy of the
Visigoths, that we may discern the causes of this procedure.
End Of Part I.
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