The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface
• Part 1: Representative Institutions In England, France, and Spain, From the Fifth to the Eleventh Century
• Lecture I
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25
• Lecture 26
• Part 2: Essays of Representative Government In England, From the Conquest Till the Reign of the Tudors
• Lecture 1
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25

LECTURE 25

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. 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.

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,1 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).

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,

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.2

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, privatae 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.

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.3 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 our successors is bound to obey, as are also the whole population of our realm.”

“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. 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.

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. 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.

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,4 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 con fined 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.

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 thelex talionis.5 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 itvi et armis,6 and seized or lost it according to the powers of the claimants and their factions. 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 theForum 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.

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.

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.

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 caede et morte hominum,7 compared with the corresponding laws of other peoples, is a very remarkable example of this. 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:

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. 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.

[1. ]Ancient matters newly corrected.

[2. ]This passage that explains the relation between human and divine law is essential for understanding the theological background of Guizot’s political thought and his doctrine of the sovereignty of reason (on this issue, also see HCE, pp. 50–51). In Guizot’s view, man-made laws are legitimate only insofar as they are in conformity with the dictates of reason, truth, and justice “which constitute the true law.” Two corollaries of this idea are worth pointing out. First, no human will can confer legitimacy to power since the principle of legitimacy has a transcendent origin. Legitimate power does not come from below; only that power which acts according to the “true” law of reason, justice, and truth is legitimate and comes “from above” (ibid., p. 189). Second, force can never be the foundation of political legitimacy. As Guizot himself explains in HCE, one of the most important characteristics of political legitimacy “is to reject physical force as a source of power, and to connect it with a moral idea, with a moral force, with the idea of right, of justice, and of reason” (HCE, p. 50).

[3. ]You will be the king of this if you do just things; if, however, you do not do [ just things], you will not be [king].

[4. ]With the entire people, with the people giving assent.

[5. ]The law of retaliation.

[6. ]By force and arms.

[7. ]On the slaughter and death of men.