Chapter XIII: Part I (10)

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. {220} 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. {223} 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. {227} 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. {230} 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.

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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.

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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.

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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.

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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.

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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.

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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.