Chapter XII: Part I (9)

1. The members of the Senate, and all those who were entitled
to bear the name of _clarissimi;_
2. The officers of the palace;
3. The clergy;
4. The cohortal militia, a sort of _gendarmerie_ employed
in the maintenance of the internal order of the State, and the
execution of the laws;
5. The soldiers in general, whether included in the legions, or
in the troops attached to the palace, or in the corps of
barbarian auxiliaries.

The class of curials comprehended all the citizens inhabiting towns, whether natives or settlers therein, who possessed a certain landed income, and did not belong, by any title, to the privileged class. The common people were the mass of the inhabitants of the towns, whose almost absolute want of property excluded them from a place among the curials.

The privileged members of the first class were numerous, of various rank, and unequally distributed among the five orders of which it was composed; but that which was, in fact, the most important and most sought after of their privileges, that which alone was more valuable than all the rest, was common to the five orders which constituted this class--I mean, exemption from municipal functions and offices.

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When we come to treat of the curials, you will learn what was the extent of these duties; but you must first understand clearly who were exempt from them.

1. The whole army, from the lowest _cohortalis_ to the
_magister equitum peditumve;_

2. The entire body of the clergy, from the simple clerk to the
archbishop;

3. It is an easy matter to define the two foregoing classes;
but it is not so clear who were the members of the class of
senators and _clarissimi_.

The number of the senators was unlimited; the emperor appointed and dismissed them at his will, and could even raise the sons of freedmen to this rank. All those who had filled the principal magisterial offices in the Empire, or who had merely received from the prince the honorary title belonging to those magistratures, were called _clarissimi_, and had the right, when occasion required, of sitting in the Senate. Thus the class of _clarissimi_ included all the functionaries of any importance: and they were all appointed and might be dismissed by the emperor.

The Privileged Class.

The body of privileged individuals, then, was composed:

1. Of the army;

2. Of the clergy;

3. Of all the public functionaries, whether employed at the
Court and in the palace, or in the provinces.

Thus despotism and privilege had made a close alliance; and, in this alliance, privilege, which depended almost absolutely on despotism, possessed neither liberty nor dignity, except perhaps in the body of the clergy.

This privilege, and especially exemption from curial functions, was not purely personal, but also hereditary. It was so, in the case of military men, on condition that the children also should embrace the profession of arms; and in the case of civilians, it was continued to those children who were born since their fathers had belonged to the class of _clarissimi_, or had occupied posts in the palace. Among the classes exempt from curial functions was the cohortal militia, a subaltern service to which those who entered it were hereditarily bound, and from which there was no means of passing into a superior class.

The class of curials comprehended all the inhabitants of the towns, whether natives thereof, _municipes_, or settlers therein, _incolæ_, who possessed a landed property of more than twenty-five acres, _jugera_, and did not belong to any privileged class. Members of the curial class became so either by origin, or by appointment. {195} Every child of a curial was a curial also, and liable to all the charges attached to that quality. Every inhabitant who, by trade or otherwise, acquired a landed property of more than twenty-five acres, might be summoned to enter the _curia_, and could not refuse to do so. No curial could, by a voluntary act, pass into another condition. They were interdicted from dwelling in the country, entering the army, or engaging in employments which would have liberated them from municipal functions, until they had passed through every curial gradation, from that of a simple member of a _curia_ to the highest civic magistracies. Then alone they might become military men, public functionaries, and senators. The children born to them before their elevation remained curials. They were not allowed to enter the clergy except by granting the enjoyment of their property to any one who agreed to be a curial in their place, or by making a present of their possessions to the _curia_ itself. As the curials were incessantly striving to escape from their bondage, a multitude of laws were passed directing the prosecution of those who had escaped from their original condition, and succeeded in effecting their entrance furtively into the army, the clergy, public offices, or the Senate; and ordaining their restoration to the _curia_ from which they had fled.

Functions And Charges Of The Curials.

The following were the functions and charges of the curials thus confined, voluntarily or perforce, in the _curia_.

1. The administration of the affairs of the _municipium_,
with its expenditure and revenues, either by deliberating
thereon in the _curia_, or by discharging the magisterial
offices of the town. In this double position, the curials were
responsible not only for their individual management, but also
for the necessities of the town, for which they were bound to
provide out of their own resources, in case the municipal
revenues were insufficient.

2. The collection of the public taxes, also under the
responsibility of their private property in case of defaulters.
Lands which were subject to the land-tax and had been abandoned
by their possessors, were allotted to the _curia_, which
was bound to pay the tax thereon until it had found some one
willing to take them off its hands. If it could find no one,
the tax on the abandoned land was divided amongst the other
estates.

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3. No curial could sell the property from which he derived his
qualification, without the permission of the governor of the
province.

4. The heirs of curials, when not members of the _curia_,
and the widows or daughters of curials, who married men
belonging to other classes, were bound to give a fourth part of
their goods to the _curia_.

5. The curials who had no children could not dispose, by will,
of more than a fourth of their property: the other
three-fourths went, by right, to the curia.

6. They were not allowed to absent themselves from their
_municipium_, even for a limited time, without permission
from the judge of the province.

7. When they had withdrawn from their _curia_, and could
not be brought back, their property was confiscated to the
benefit of their _curia_.

8. The tax known by the name of _aurum coronarium_, and
which consisted in a sum to be paid to the prince, on the
occasion of certain events, was levied on the curials alone.

Advantages Granted To The Curials.

The only advantages granted to the curials in compensation for these burdens were:

1. Exemption from torture, except in very serious cases.

2. Exemption from certain afflictive and dishonouring
punishments which were reserved for the populace; such as being
condemned to work in the mines, to be burned alive, and so
forth.

3. Decurions who had fallen into indigence were supported at
the expense of the _municipium_.

These were the only advantages possessed by the curials over the common people, who, on the other hand, enjoyed the benefit that every career was open to them, and that, by entering the army, or engaging in public employments, they might raise themselves at once into the privileged class.

The condition of the curials, then, both as citizens and in relation to the State, was onerous and devoid of liberty. Municipal administration was a burdensome service, to which the curials were doomed, and not a right with which they were invested. Let us now see what was the condition of the curials, not in relation to the State, and to the other classes of citizens, but in the _curia_ and amongst themselves. Here still existed the forms, and even the principles, of liberty. All the curials were members of the _curia_, and sat therein. The ability to bear the burdens of the office entailed that of exercising its rights, and taking part in its affairs; the names of all the curials of each _municipium_ were inscribed, in an order which was determined according to their dignity, age, and other circumstances, in a book called the _album curiæ_. {197} When there was occasion to deliberate upon any matter, they were all convoked together by the superior magistrate of the town, the _duumvir, ædilis_ or _prætor_, and they all gave their opinions and their votes; everything was decided by the majority of votes: and no deliberation of the _curia_ was valid unless two-thirds of the curials were present.

Attributes Of The Curia.

The attributes of the curia as a body were:

1. The examination and decision of certain affairs;

2. The appointment of magistrates and municipal officers.

Nowhere can I find an enumeration of the affairs which fell under the cognizance of the _curia_ as a body. Everything, however, indicates that most of those municipal interests which required more than the simple execution of the laws or of orders already given, were discussed in the _curia_. The proper and independent authority of the municipal magistrates appears to have been very limited. For example, there is reason to believe that no expense could be incurred without the authorization of the _curia_. It fixed the time and place for holding fairs; it alone granted recompenses; and so forth.

There were even occasions on which the authorization of the _curia_ was not sufficient, and when it was necessary to have the sanction of all the inhabitants, whether curials or not; for example, for the sale of any property belonging to the commune, or for the despatch of deputies to wait on the emperor in reference to any grievance or request. On the other hand, it is evident that, by the general progress of despotism, the imperial power continued daily to interfere more and more in the affairs of the _municipia_, and to limit the independence of the _curiæ_. Thus they might not erect new buildings without the permission of the governor of the province; the reparation of the walls around the towns was subject to the same formality; and it was also necessary for the emancipation of slaves, and for all acts which tended to diminish the patrimony of the city. By degrees, also, even those affairs the final decision of which had previously belonged to the _curiæ_ fell, by way of objection or appeal, under the authority of the emperor and his delegates in the provinces. This occurred in consequence of the absolute concentration of judicial and fiscal power in the hands of the imperial functionaries. The _curia_ and the curials were then reduced to be nothing more than the lowest agents of the sovereign authority. There was left to them hardly anything beyond the right of consultation and the right of complaint.

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Municipal Offices.

With regard to the appointment to municipal magistracies, it remained for a long time, in reality, in the hands of the _curia_, without any necessity for its confirmation by the governor of the province, except in exceptional cases of towns which it was specially intended to ill-use or punish. But even this right soon became illusory by reason of the power given to provincial governors to annul the appointment on the demand of the person elected, When municipal functions had become merely burdensome, all the curials elected to discharge these offices, who had any influence with the governor, were able, under some pretext or another, to get their election annulled, and thus to escape from the load.

There were two kinds of municipal offices: the first, called _magistratus_, which conferred certain honours and a certain jurisdiction; the second, called _munera_, simple employments without jurisdiction and without any particular dignity. The _curia_ appointed to both kind of offices; only the magistrates proposed the men whom they thought competent to fulfil the _munera_; but even these were not really appointed until they had obtained the suffrages of the _curia_.

The _magistratus_ were:

1. _Duumvir_; this was the most usual name of the chief
municipal magistrate. He was also called, in certain
localities, _quatuorvir, dictator, ædilis, prætor_. His
tenure of office was for a year; it corresponded pretty nearly
with that of our mayors; the _duumvir_ presided over the
_curia_, and directed the general administration of the
affairs of the city. He had a jurisdiction confined to matters
of small importance; he also exercised a police authority which
gave him the right of inflicting certain punishments upon
slaves, and of provisionally arresting freemen.

2. _Ædilis_; this was a magistrate generally inferior to
the _duumvir_; he had the inspection of public edifices,
of the streets, of corn, and of weights and measures. These two
magistrates, the _duumvir_ and _ædilis_, were
expected to give public festivals and games.

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3. _Curator reipublicæ;_ this officer, like the ædile,
exercised a certain oversight over public edifices; but his
principal business was the administration of the finances; he
farmed out the lands of the _municipium_, received the
accounts of the public works, lent and borrowed money in the
name of the city, and so forth.

The _munera_ were:

1. _Susceptor_, the collector of taxes, under the
responsibility of the curials who appointed him.

2. _Irenarchæ_, commissaries of police, whose duty it was
to seek out and prosecute offences, in the first instance.

3. _Curatores_, officers charged with various particular
municipal services; _curator frumenti, curator
calendarii_, the lender out on good sureties of the money of
the city, at his own risk and peril.

4. _Scribæ_, subaltern clerks in the two offices. To this
class belonged the _tabelliones_, who performed almost the
same functions as our notaries.

The Defenders Of Cities.

In later times, when the decay of the municipal system became evident, when the ruin of the curials and the impotence of all the municipal magistrates to protect the inhabitants of the cities against the vexations of the imperial administration, became evident to despotism itself; and when despotism, suffering at length the punishment of its own deeds, felt society abandoning it on every side, it attempted, by the creation of a new magistracy, to procure for the _municipia_ some security and some independence. A _defensor_ was given to every city; his primitive mission was to defend the people, especially the poor, against the oppression and injustice of the imperial officers and their agents. He soon surpassed all the other municipal magistrates in importance and influence. Justinian gave the _defenders_ the right to exercise, in reference to each city, the functions of the governor of the province during the absence of that officer; he also granted them jurisdiction in all cases which did not involve a larger sum than 300 _aurei_. They had even a certain amount of authority in criminal matters, and two apparitors were attached to their person; and in order to give some guarantees of their power and independence, two means were employed; on the one hand, they had the right of passing over the various degrees in the public administration, and of carrying their complaints at once before the prætorian prefect; this was done with the intention of elevating their dignity by freeing them from the jurisdiction of the provincial authorities. {200} On the other hand, they were elected, not by the _curia_ merely, but by the general body of the inhabitants of the _municipium_, including the bishop and all the clergy; and as the clergy then alone possessed any energy and influence, this new institution, and consequently all that still remained of the municipal system, fell into its hands almost universally. This was insufficient to restore the vigour of the _municipia_, under the dominion of the empire; but it was enough to procure for the clergy great legal influence in the towns after the settlement of the Barbarians. The most important result of the institution of _defenders_ was to place the bishops at the head of the municipal system, which otherwise would have dissolved of itself, through the ruin of its citizens and the nullity of its institutions.

Destruction Of The Middle Class.

Such are the facts: they demonstrate the phenomenon which I indicated at the outset, namely, the destruction of the middle class in the empire; it was destroyed materially by the ruin and dispersion of the curials, and morally by the denial of all influence to the respectable population in the affairs of the State, and eventually in those of the city. Hence it arose that, in the fifth century, there was so much uncultivated land and so many towns almost deserted, or inhabited only by a famished and spiritless population. The system which I have just explained contributed, much more powerfully than the devastations of the Barbarians, to produce this result.

In order rightly to apprehend the true character and consequences of these facts, we must reduce them to general ideas, and deduce therefrom all that they contain in regard to one of the greatest problems of social order. Let us first examine them on the relations of the municipal system with political order, of the city with the State. In this respect, the general fact which results from those which I have stated, is the absolute separation of political rights and interests from municipal rights and interests; a separation equally fatal to the political rights and interests, and to the municipal rights and interests of citizens. So long as the principal citizens possessed, at the centre of the State, real rights and an actual influence, the municipal system was not wanting in guarantees of security, and continued to develop itself. As soon as the principal citizens lost their influence at head quarters, these guarantees disappeared, and the decay of the municipal system was not long in manifesting itself.

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The Roman Empire And Modern States.

Let us now compare the course of things in the Roman world, with what has occurred in the modern states. In the Roman world, centralization was prompt and uninterrupted. In proportion as she conquered the world, Rome absorbed and retained within her walls the entire political existence of both victors and vanquished. There was nothing in common between the rights and liberties of the citizen, and the rights and liberties of the inhabitant; political life and municipal life were not confounded one in the other, and were not exhibited in the same localities. In regard to politics, the Roman people had, in truth, only one head; when that was stricken, political life ceased to exist; local liberties then found themselves unconnected by any bond, and without any common guarantee for their general protection.

Among modern nations, no such centralization has ever existed. On the contrary, it has been in the towns, and by the operation of municipal liberties, that the mass of the inhabitants, the middle class, has been formed, and has acquired importance in the State. But when once in possession of this point of support, this class soon felt itself to be in straits, and without security. The force of circumstances made it understand that, so long as it was not raised to the centre of the State, and constitutionally established there; so long as it did not possess, in political matters, rights which should prove the development and pledge of those which it exercised in municipal affairs--these last would be insufficient to protect it in all its interests, and even to protect themselves. Here is the origin of all the efforts which, from the thirteenth century onwards, either by States General or Parliaments, or by more indirect means, were made for the purpose of raising the burghers to political life, and associating with the rights and liberties of the inhabitant, the rights and liberties of the citizen. After three centuries of endeavour, these efforts were unsuccessful. The municipal system was unable to give birth to a political system which should correspond with it and become its guarantee. The centralization of power was effected without any centralization of rights. {202} Thenceforward the municipal system proved weak and incapable of defending itself; it had been formed in spite of feudal domination; it was unable to exist in presence of a central authority, and in the midst of administrative monarchy. The towns gradually lost, obscurely and almost unresistingly, their ancient liberties. No one is ignorant that, at the moment when the French revolution broke out, the municipal system in France was nothing more than a vain shadow, without consistency or energy.

Results of the Comparison.

Thus although, in the Roman world and amongst ourselves, matters have progressed in inverse proportion, although Rome began by the centralization of public liberties, and modern States by municipal freedom, in both cases facts alike reveal to us the double truth that the two orders of liberties and rights are indispensable to one another, that they cannot be separated without mutual injury, and that the ruin of one necessarily entails the ruin of that which at first survives.

A second result of no less importance is revealed to us by the same facts. The separation of the municipal from the political system led, in the Roman empire, to the legal classification of society and to the introduction of privilege. In modern States, an analogous classification and the presence of aristocratic privileges prevented the municipal system from raising itself to political influence, and from producing the rights of the citizen from the local rights of the inhabitant. Where, then, municipal and political life are strangers to one another, where they are not united in the same system and bound together in such a manner as reciprocally to guarantee each other's security, we may be certain that society either is or soon will be divided into distinct and unchangeable classes, and that privilege either already exists or is about to make its appearance. If the burgesses have no share in the central power, if the citizens who exercise or share in the central power do not at the same time participate in the rights and interest of the burgesses, if political and municipal existence proceed thus collaterally, instead of being, as it were, included in each other, it is impossible for privilege not to gain a footing, even beneath the iron hand of despotism and in the midst of servitude.

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Principles of Liberty.

If from all this we desire to deduce a still more general consequence, and to express it in a purely philosophical form, we shall acknowledge that, in order that right may certainly exist in any place, it must exist everywhere, that its presence at the centre is vain unless it be present also in localities; that, without political liberty, there can be no solid municipal liberties, and _vice versâ_. If, however, we consider the facts already stated in reference to the municipal system taken in itself and in its internal constitution; if in these facts we look for principles--we shall meet with the most singular amalgamation of the principles of liberty with those of despotism; an amalgamation, perhaps unexampled, and certainly inexplicable to those who have not well understood the course of circumstances, both in the formation and in the decline of the Roman world.

The presence of principles of liberty is evident. They were these.

1. Every inhabitant possessing a fortune which guaranteed his
independence and intelligence, was a curial; and, as such,
called upon to take part in the administration of the affairs
of the city. Thus, the right was attached to presumed capacity,
without any privilege of birth, or any limit as to number; and
this right was not a simple right of election, but the right of
full deliberation, of immediate participation in affairs, as
far as they related to what occurred in the interior of a town,
and to interests which might be understood and discussed by all
those who were capable of raising themselves above the cares of
individual existence. The _curia_ was not a restricted and
select council, it was an assembly of all the inhabitants who
possessed the conditions of curial capacity.

2. An assembly cannot administrate--magistrates are necessary.
These were all elected by the _curia_, for a very short
time; and they answered for their administration by their
private fortune.

3. In circumstances of importance, such as changing the
condition of a city, or electing a magistrate invested with
vague and more arbitrary authority, the _curia_ itself was
not sufficient; the whole body of the inhabitants was called in
to take part in these solemn acts.

Who, on beholding such rights, would not think that he saw a small republic, in which municipal and political life were merged in one another, and in which the most democratic rule prevailed? Who would think that a municipality thus regulated formed a part of a great empire, and depended, by narrow and necessary bonds, on a remote and sovereign central power? {204} Who would not, on the contrary, expect to meet with all the outbreaks of liberty, all the agitations and cabals, and frequently all the disorder and violence which, at all periods, characterize small societies thus shut up and governed within their own walls?

Principles Of Despotism.

Nothing of the kind was the case, and all these principles of liberty were lifeless. Other principles existed which struck them to death.

1. Such were the effects and exactions of the central despotism
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.

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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.

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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.

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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.

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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.]

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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. {216} 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.