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LECTURE 26 - François Guizot, The History of the Origins of Representative Government in Europe 
The History of the Origins of Representative Government in Europe, trans. Andrew R. Scoble, Introduction and notes by Aurelian Craiutu (Indianapolis: Liberty Fund, 2002).
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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.
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 immensa multitudine;1 the Franks their Champs de Mars and Champs de Mai, and their placita generalia.2 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. 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, 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 theplacita 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.
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. 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. 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.
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,3 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 ocium 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.
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 orLeudes 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. 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.
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.
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,4 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.
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,5millenarius, quingentenarius, centenarius, decanus, defensor, numerarius,6 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.
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.
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.7 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.
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. In case of appeal to the count or king, if it were proved that the wrong decision of the judge was occasioned by malice, corruption, or prevarication of any kind, and if he were unable to pay the appellant the requisite sum, he was given to him as a slave, and condemned to receive besides fifty lashes in public. He was absolved from all penalty, however, if he proved, under oath, that his decision was pronounced in error or ignorance. The judges who neglected to prosecute the licentious were punished with a hundred lashes, and fined 300 solidi. The priests and bishops everywhere were enjoined to exercise a strict surveillance over the judges; and as the former then derived their chief strength from their superior knowledge and their protection of the weak, it is not unlikely that this guarantee was effective.
But all this was defective, as you perceive, by the radical defect of the system of pure monarchy, which gives, as the only guarantee for the good conduct of the depositaries of power, the surveillance and authority of superior depositaries placed in the same position, and invested with the same functions.
The true guarantees of liberty can only reside in the concurrence of collateral and independent powers, none of which is absolute, and which mutually control and limit each other. Of this the Forum judicum affords us no trace, at any stage in the long hierarchy of the government.
The local government of the Visigoths, then, presents still fewer institutions containing any active principle of liberty, any real force of control or resistance, than are found in their political regime, and at the centre of the State. Such is, at least, the unavoidable result to which we are led by an examination of the general and definitive code of this nation.
This result has appeared so singular, so opposed to German customs, and to the state of things among other peoples of the same origin, that hardly any man of erudition has been willing to read it in the Forum judicum; and that those even who have failed to find in this code any proof of the existence of free institutions, and almost any trace of old Barbarian institutions, have striven to discover them elsewhere in Spain at this period. I shall say nothing of Abbé Mariana,9 who, in his Teoria de las Cortes, is determined to discover, in the councils of Toledo, not only the Spanish Cortes of the thirteenth and fourteenth centuries, but also all the principles and guarantees of liberty—all, in fine, that constitutes a national assembly and a representative government. I have already demonstrated the moral improbability and the historic unreality of the fact. Two more learned men than Abbé Mariana, and less inclined than he to find what they seek, have thought that they perceive, in the Forum judicum, proofs that the purely monarchical system, associated with the theocratic system, did not prevail so completely among the Visigoths; and that they can discover among them evidences of effective and extended public liberties: I refer to M. de Savigny, in his History of Roman Law in the Middle Ages, and to a writer in the Edinburgh Review,* in an article on The Gothic Laws of Spain. I do not think that the researches of these two learned critics destroy the general results which I have just laid before you. They nevertheless contain many curious facts hitherto little noticed, and which throw much light on the study of the political institutions of the Visigothic monarchy. I shall, therefore, make you acquainted with them, and examine the consequences to which they lead.
M. de Savigny, when investigating the traces of the perpetuation of the Roman law after the fall of the Empire, expresses himself in these terms, in reference to the Visigoths: “Upon the constitution of this monarchy,” he says,
we possess sufficiently complete information in the Breviarium Aniani, who, about the year 506, that is, nearly a century after the foundation of the State, drew up the Roman law into a sort of code for the ancient inhabitants of the country. This code consists, as is well known, of two parts: one contains texts quoted word for word from the Roman law; the other an interpretation specially prepared on this occasion. With regard to the texts quoted from the Roman law, we cannot attach great importance to them, when we speak of the real state of things at the period of this publication; as they were drawn from sources much more ancient, expressions and even entire phrases were necessarily retained which had reference to various circumstances of a social state that had already passed away and fallen into desuetude; the interpretation was intended to explain this disagreement. But this interpretation, drawn up ad hoc, is, on the other hand, very trustworthy, especially when it does not implicitly follow either the words or the sense of the text, for then we can no longer regard it as a servile and thoughtless copy, especially in what relates to matters of public law. It is impossible to believe that real establishments, institutions set before the eyes of all, and with which all might be acquainted, could have been mentioned unintentionally and described without an object. Now, in this interpretation, the Roman praeses has entirely disappeared; but the municipal community, with its particular jurisdiction and its decurions taking part in the administration of justice, subsists in all its integrity: it even appears to possess more individual consistency and independence than it had enjoyed under the emperors.
The general principle of the defensores, of their duties and the mode of choosing them, is explained in the interpretation, as well as in the text of the Theodosian code. According to the text, the governor of the province was not to be burdened with the judgment of petty offences; but it does not mention who was to judge them, whereas the interpretation expressly names the defensor. According to the text, the introduction of a civil suit might take place either before the governor, or before those who had the right to draw up the necessary acts; the interpretation adds the defensor....
M. de Savigny then quotes a number of other examples to prove the maintenance, and even extension, of the functions of the defenders of the cities. “Other passages,” he continues,
have reference to the curia, the decurions, and even to the citizens in general. The system of decurions, in general, is received in theBreviarium, with very few modifications, but merely great abridgement. To one passage of the text which casually mentions adoption, the interpretation adds, as a commentary, that it is the choice of an individual as a child, made in presence of the curia. The Visigothic jurisconsult, Gaius, says, that emancipation, which formerly took place before the president, was, at the period at which he wrote, performed before the curia. The text determines by whom tutors were appointed at Constantinople, namely, by the prefect of the city, ten senators, and the praetor, whose duty it was to watch over the interests of the pupils: the interpretation substitutes in their place the judge, with the chief men of the town. The text speaks of the necessity of a decree to authorize the alienation of the property of a minor: the interpretation adds, that this decree must be obtained from the judge or the curia. The text ordains that, at Constantinople, wills should be opened by the same office that received them: the interpretation substitutes the curia in its place. According to the text, donations should be registered either before the judge (the governor of the province), or before the municipal magistrate (the duumvir): the interpretation substitutes the curia for the municipal magistrate—which does not, in reality, alter the sense of the law, but which proves what is demonstrated by many other passages, that the general point of view was completely changed; anciently the chief municipal authority, and especially jurisdiction, was considered, according to Roman maxims, to be a personal right of the magistrate: according to the interpretation, it belonged less to the defensor himself, than to the curia taken collectively.... Under the emperors, the honorati, that is, those who had occupied high municipal dignities, had a seat of honour near the governor of the province when he administered justice; they were only expected to abstain from being present when their own causes were under consideration. The interpretation applies this to the curials; an application which is remarkable in two respects, first, because it proves that the curials were held in great consideration, and secondly, because this does not merely refer to the possession of a seat of honour by them, but to an actual participation in the jurisdiction of the municipal judge, that is, of the duumvir or defensor.. . . The text of the code ordains that, out of Rome, in order to pronounce sentence on a criminal accusation brought against a senator, five senators shall be chosen by lot: the interpretation makes this rule general, and requires five men to be chosen from the leading members of the same rank as the accused person, that is, decurions or plebeians, according to the condition of the accused person himself. Finally, the text ordained that every judge should receive his domesticus or cancellarius from the choice of the principal persons employed in his chancery: the interpretation retains the rule, merely substituting the burgesses of the city for the persons employed in the chancery.
Such are the traces of municipal liberties which M. de Savigny discovers in the Breviarium Aniani, and which he considers as the common and permanent law of the Visigothic monarchy. They prove, in fact, not merely the maintenance, but also the extension and enfranchisment, of the rights and guarantees possessed by the inhabitants of the towns before the settlement of the Barbarians. But strong objections may be raised against the importance which the author attaches to these texts, and the extent of the conclusions which he deduces therefrom.
I. The Breviarium Aniani does not contain the common and permanent law of the Spanish monarchy of the Visigoths. It only gives the special legislation of the Roman subjects of the Visigothic kings, when the kings resided at Toulouse, and had as yet only uncertain possessions in Spain; when the South of Gaul constituted the bulk, and almost the whole, of the kingdom. There is nothing to prove that all that is contained in the Breviarium Aniani, towards the end of the fifth century, for the benefit of the Romans of Southern Gaul, subsisted in Spain until the eighth century, for the benefit of the Goths and Romans, when merged into a single nation. The silence of the Forum judicum, which is the true code of the Spanish Visigoths, upon most of these arrangements, proves more against their maintenance than is demonstrated in their favour by the text of the Breviarium, which was drawn up in another place, at an earlier period, and for a portion only of the people.
II. About a hundred and fifty years after the publication of the Breviarium, the Goths and Romans were united into a single nation. The collection of laws, successively augmented under the different reigns, and completed by Chindasuinth, became the sole code of the kingdom; all other laws were abolished, and the Breviarium was necessarily included in this abolition. The text of the law of Recesuinth is formal:
That absolutely none of the men of our realm be permitted to lay before the judge, for the decision of any affair, any other collection of laws than that which has just been published, and according to the order in which the laws are unscribed therein; and this, under penalty of a fine of thirty pounds of gold to our treasury. Any judge who should hesitate to decline any other book that might be presented to him as suited to regulate his decision, will be punished by the same fine.
M. de Savigny foresaw this objection; and without absolutely dissembling it he has tried to weaken it by not quoting the text of the law of Recesuinth, and by speaking only of the attempts made by the Visigothic kings, that Spain should contain only a single nation, and be governed by a single code. These evasions are in striking contrast with his usual candour. He then makes use of the existence of the defensores, proof of which is found in the Forum judicum, to assume the maintenance of all the prerogatives and liberties attributed to them by the Breviarium. This conclusion is evidently hasty and excessive.
I do not dispute that the towns of Spain were able to retain, or indeed that they did necessarily retain, some institutions, some guarantees of municipal liberty. I should not infer their absolute disappearance from the silence of the Forum judicum. The despotism of the Barbarian kings, however careful it may have been to gather the heritage of Roman maxims, was neither as wise nor as circumstantial as that of the emperors. It allowed the curiae and their magistrates to continue in existence, and these petty local powers assuredly had more reality and independence under its rule than they had possessed under the Empire. The clergy, principally dwelling in the towns, and bound by strong ties to the Roman race, was itself interested in protecting them, and the more so, because it naturally placed itself at the head of the municipalities. Thus much is certain, that the remnants of institutions of surety and liberty which existed there, occupy no place in the written laws, although these laws are much more detailed than those of other Barbarian peoples, and embrace the whole civil order. They could not, therefore, be considered as forming a part of the general constitution of the kingdom; they neither modified its political character, nor changed the results of the principles that prevailed therein.
If M. de Savigny has looked for the institutions of the Visigoths in an epoch anterior to the definitive establishment of their true monarchy, and in a collection of laws abolished by the Forum judicum, the author of the dissertation contained in the Edinburgh Review has addressed his inquiries to times and documents posterior by four or five centuries to the destruction of the kingdom of the Visigoths by the Arabs; and by transporting the consequences which he has obtained therefrom into the epoch which occupies our attention, he has fallen into an error still less supported by facts than was that of M. de Savigny. His researches and inferences are the following:
It must not be supposed that the whole body of the law of the Visigoths appears in the twelve books of their code. They had their common or traditionary law, still existing in unwritten usages and customs, as well as their written law; and we are supported by analogy in asserting that this common law often spoke, when the statute law was silent. It outlived the monarchy; and we now collect it from the Fueros or ancient customs of Castile and Leon. The customs in question are preserved in the charters of the towns, which gave bye-laws to the inhabitants, confirming the unwritten common law of the country, sometimes with greater or lesser modifications in the detail, but agreeing in general principles. We equally discover them in the acts of Cortes, which, to borrow the expression of Sir Edward Coke, are often “affirmances of the common law.” The traditionary Fueros of Castile also formed the basis of the Fuero Viejo de Castilla, which received its last revision under Peter the Third. And even Alonso the Wise, though he planned the subversion of the ancient jurisprudence of his kingdom, admitted into the Partidas such of those Fueros de España as relate to the tenures of land, and to military service. Consisting of ancient usages, neither re fined by the learning of the councils nor restrained by the power of the kings, the Fueros of Castile and Leon bear a nearer affinity to the jurisprudence of the Teutonic nations than the written code. The water ordeal is noticed only once, in a law newly amended by Flavius Egica. But ordeal by compurgation, the most ancient form of trial by jury, and the battle ordeal, do not appear at all. Neither do we find any notice of the custom of returning military leaders by the verdict of a jury. All these customs, however, were Fueros of Spain in the Middle Ages. Nor could they possibly have then existed, had they not been preserved by immemorial usage and tradition.
The author then passes these ancient usages in review. The first to which he refers is the appointment of military leaders by a jury. He traces this custom back to the forests of Germany: and then shows how it could not fail to succumb universally beneath the establishment of the feudal system, and in consequence of the hierarchical subordination of persons and lands. He discovers traces of this in the nomination, by the people, of the Anglo-Saxonheretochs10 and constables,11 who were at first military officers; and also in the election of the kings of Norway by the verdicts of twelve of the principal men of each province. He then returns to Spain, “where,” he says,
we shall find our old Gothic juries employed in electing the chief officers of the army and navy of the Castilians, the Adalid, the Almocaden, the Alfaqueque, and the Comitre. Who was to be the Adalid? The question must be answered in the words of the wise king Alonso. It is said by the ancients that “the Adalid should be endowed with four gifts—the first is wisdom, the second is heart, the third is good common sense, and the fourth is loyalty; and when a king or any other great lord wishes to make an Adalid, he must call unto himself twelve of the wisest Adalides that can be found, and these must swear that they will truly say, if he whom they wish to choose to be an Adalid hath the four gifts of which we have spoken, and if they answer yea, then they are to make him an Adalid.”
Here we have clearly an inquest by twelve men giving their verdict upon oath. If it happened that twelve Adalides could not be found, then a kind of tales de circumstantibus12 was added to this special jury of Adalides. The king or lord was to make up the full number of twelve with other men well approved in war and deeds of arms, and their verdict was as good as if they had been all Adalides. And he who dared to act as an Adalid without being fully elected, was to suffer death. “It was advised in ancient times,” says Alonso, “that they were to have the qualities before mentioned, because it was necessary that they should possess them, in order to be able to guide the troops and armies in time of war, and therefore they were called Adalides, which is equivalent to guides (que quiere tanto decir como guiadores).”
The author is, therefore, of opinion that this word comes from adal, adel, noble, and leid, lead, leiten, to guide or conduct. The Adalid was the guide or chief of the Almogavars, or cavalry soldiers. The Adalid mayor was commander-in-chief of all the Almogavars, or Castilian cavalry.
After his election by this species of jury, the Adalid was thus solemnly admitted to his office.
The king gave him rich garments, and a sword and a horse, and arms of wood and iron, according to the customs of the country. By a rico hombre, a lord of knights, the sword was to be girt, and then a shield was placed upon the ground, the future Adalid stepped upon it, and the king drew the sword out of its scabbard, and put it naked in his hand. And now as many of the twelve Adalids as can assemble round the shield, grasp its edge, and lift him up as high as they may: they turn his face towards the east.—“In the name of God,” exclaims the Adalid, “I defy all the enemies of the faith, and of my lord the king, and of his land.” And, thus speaking, he lifted up his arm, and struck a stroke downward, and he then struck another stroke across, thus describing in the air the sweet and holy sign of redemption, and he repeated this challenge four times towards each of the quarters of the world. Then the Adalid sheathed his sword, and the king placed a pennon in his hand, saying, “I grant unto thee that henceforward thou art to be an Adalid. ” An Adalid might have risen to command from the lowest rank in the Castilian army. He might have been a peon or foot-soldier, but he became the fellow and companion of the hereditary nobles, the lords of vassals, and the ricos hombres.
In this ceremony, the author perceives a repetition of the forms used at the election of kings among the Germans, or at least at the choice of military leaders; duces ex virtute sumunt.13
I would by no means affirm that there does not exist, in this mode of choosing captains, in the concurrence of these twelve jurymen, and even in the number twelve itself, any remnant of old Germanic customs. This much is evident, that what has just been described was much rather a sort of chivalric ceremony in connection with the elevation of a man to a superior rank, than the election of a barbaric chief; all the forms, all the details of the elevation of an Adalid, remind us much more of chivalric usage than of Germanic custom; and it is a strange anachronism to suppose that all this took place, five hundred years before, among the Visigoths, notwithstanding that no mention is made of it in any historic monument, and, what is still more conclusive, notwithstanding that the general state of manners at that time gives no hint of anything of the kind. It is much more probable that these customs originated among the Goths during their struggle against the Arabs, in the mountains of Northern Spain, and in consequence of the new direction of mingled feudalism and liberty, which was imparted to their manners by this new position.
The Almocadene or captain of foot soldiers, the Alfaqueque or officer employed to treat for the ransom of captives from the Moors, and the Comitre or captain of a ship, were appointed in a similar manner, and by the recommendation of a jury composed, not of members of the class to which the candidate belonged, but to members of the class to which he aspired. This circumstance alone settles the question; for it is a result of chivalric, and not of Barbarian manners; it reminds us of the squire who was dubbed knight by knights, and not of the warrior who was chosen or judged by his peers.
I shall not follow the author in his researches on ordeal by boiling water and by fire, or upon trial by combat. Although we meet with traces of these customs in the old monuments of some Barbarian legislations, they were not the common law of modern peoples, during the first epoch of their establishment on the Roman territory. It was at a later period, and by the influence either of the corruption of religious ideas by superstition, or of the military organization of the feudal system, that they became developed, recognized, and formed into a veritable jurisprudence. The general facts of Europe do not, therefore, authorize us to conclude that, because they existed among the Spaniards in the fourteenth century, they also existed among the Visigoths in the seventh century. The almost absolute silence of the historic monuments of the first epoch, here retains all its authority.
The facts relative to compurgation,14 by the oath of a certain number of witnesses, are more important and more curious. “Compurgation,” says our author, “is directed in express terms in all the Teutonic laws; but it does not appear to have been admissible in trials conducted according to the forms prescribed by the Fuero juzgo. Yet afterwards, this ordeal was widely spread as afuero, both in civil and criminal trials. Though discountenanced by the legislature, it was retained in practice; and a forcible illustration is thus given of the stubbornness with which the Goths adhered to their usages and customs.Trial by jury, through it, in its germ was felt to be a benefit.”
As an ancient and general usage of Castile, the trial is sanctioned in the Fuero Viejo. As a local custom or bye-law of the cities of Castile and Leon and their dependencies, it was very frequently established, or rather declared, by the charters granted by their founders.
Three thousand sueldos, according to the Fuero Viejo, were paid for dishonouring the palace of the king, or spoiling his castle; and five hundred sueldos was the price of the head of the merino, or the composition for scandalizing him; and every man who wished to save himself from the payment of these mulcts, was to defend himself by the oath of twelve men, for such was the usage of Castile in the old time. When accused of the death of another fijo d’algo, the suspected noble defended himself by the oath of eleven other fijos d’algo, himself the twelfth, and, as true knights, they were all sworn, upon the Gospel Book, with their spurs upon their heels. There were two insults only which gave a Dueña, or a squire, the right of complaining that a fijo d’algo, had scandalized them, viz., a blow or a wound, or the robbery of their mules or garments. Within three days, the party so injured by a caitiff knight was obliged to complain of the offence, and to disclose the injury to the fijos d’algo of the town, the labradores, and to the inmates of the fijos d’algo, if there were any, and to cause the town-bell to be rung, saying, “such a one hath thus dishonoured me.” These formalities having been observed, the fijo d’algo was bound to answer the complaint; reparation was made if he confessed it, by forfeiting five hundred sueldos, the price of his own head; but if he denied it, he was to clear himself by the oath of eleven other fijos d’algo, himself the twelfth. But a labrador accused of injuring a fijo d’algo was not to be admitted to defend himself by his peers; and he was unfairly compelled to swear with eleven fijos d’algo, himself the twelfth.
These customs are taken from the general code. In peculiar districts, compurgation was so much in vogue, that compurgatrixes were allowed to female culprits. At Anguas, as well as in other towns, a woman charged with theft could defend herself by the oaths of a jury of other women. More whimsical was the Fuero of Cuenca, which is passing strange, both for the spirit of the law and the terms in which it is expressed. If perchance any husband suspected that his wife had planted horns upon his head, although he was not able to prove the fact by evidence, the wife was to justify herself by swearing to her chastity, with twelve good wives of the neighbourhood; and if they pronounced her to be pure, her husband was obliged to be persuaded that she was so.
The customs of St. Sebastien in Guipuscoa, allowed an odd kind of proceeding, resembling the assessment of damages by the verdict of a jury. The ravisher was to pay the price of virginity, or he was to marry the object of his ungovernable passion; which punishment, as the charter wisely observes, “is fully equal to a fine.” But if she, who had been a maid, was unworthy of becoming his wife, he was to provide her with such a husband as she might have reasonably expected to have obtained previous to her mishap, “according to the estimation of the alcalde, and of twelve good men of St. Sebastien.”
The fullest directions concerning the use of the ordeal are contained in the charter of Molina. Don Molrique de Lara incorporated the town of Molina, the seigniory of the noble house of Lara, in the year 1152. His charter may be quoted as the most valuable record concerning the ancient municipal jurisprudence of Castile which has yet been published, as it displays the entire constitution and government of a Castilian town. * * * * Fines, according to the old Gothic law, were enacted at Molina for wounds and maims. The accuser was to support his charge by three “vecinos ” or burghers of the town, if the offence was committed within its walls. Two vecinos sufficed if without. And, in default of full proof, the culprit either swore with twelve vecinos, or fought with the accuser; but the latter had the choice of the ordeal. * * * * When a murder had been committed, if one of those engaged in the fray took the guilt on his own head, saying, “I killed him, ” the others were “to save themselves with twelve true burghers,”—los otros salvense con doce vecinos derecheros. It might happen, that none would confess the crime; and as all were then equally liable to suspicion, the relations of the dead man were at liberty to select any one as the murderer, “just as they thought fit”; after which the supposed murderer named eleven relations of the slain, and these, together with the accuser, swore to his being guilty or not guilty. Unanimity was required; and if one or two would not swear, that is to say, if they could not agree with the majority, each one who was so dissentient swore with twelve, that neither he, nor any one for his use, had received any bribe; then he was discharged. But if the defendant did not “fall” by the withdrawing of his juror, he was at liberty to name another. This proceeding is remarkable; a new aspect is given to the ordeal by calling in the compurgators to swear with the accuser instead of the accused; and in this form it is, perhaps, more closely assimilated to a jury-trial. It may be observed, that a practice once prevailed in England of withdrawing the dissentient jurors, and replacing them by others, till an unanimous verdict was obtained.
Such are the facts which the author of these researches has collected on the existence of ancient Germanic customs, or analogous usages, in the towns of Castile and Leon, dating from the twelfth century. He unhesitatingly concludes therefrom that these same customs existed in the sixth and seventh centuries among the Spanish Visigoths, and formed a part of their institutions.
It is inconvenient to prove that facts are not true, for it devolves on him who affirms them to prove that they are so; and, in such a case as this, when we speak of epochs separated by five or six centuries, and by such a revolution as the dispossession of a people and a foreign conquest, inductions are not sufficient. The Forum judicum is absolutely silent upon the appointment of military leaders, and upon compurgation by juries; nay, more, this latter institution is incompatible with the arrangements of this code in reference to judges and the administration of justice. No other contemporary authority contradicts the Forum judicum. Must we, upon the authority of facts of much more recent date, and which refer to an entirely different state of civilization, refuse to believe proofs so direct, and testimonies so positive?
I am aware of all that may be said about the disorders of these times, the continual gaps in the laws, and the disposition of legislators to omit precisely those usages which were most simple and universal, as though they had no need to be consecrated or even indicated by formal enactment. It is, in fact, very possible that the practice of compurgation by juries was not completely unknown to the Visigoths; it recurs in all Germanic customs, and it may not have disappeared either entirely or all at once, even after the introduction of a code derived principally from the Roman laws. But it is impossible to believe, in spite of this code, that it continued to be the common law, the fundamental institution, the veritable judicial system of the nation.
It is more easy to explain, with likelihood, the existence of these practices among the Spanish Goths of the twelfth century, than to justify, without proofs, or rather in opposition to all evidence, the arbitrary supposition of their prevalence among the Visigoths of the seventh. Such institutions have in themselves something of spontaneity; they correspond to a certain degree of civilization, to a certain state of social institutions; we meet with them under forms more or less similar, but fundamentally analogous, not only among all the Germanic peoples, but also among nearly all those barbaric peoples which, scarcely issued from a nomadic life, begin to establish themselves on a new territory, after they have conquered it. Now, the destruction of the monarchy of the Visigoths by the Arabs suspended the course of the institutions which it had received two centuries before, broke off the councils of Toledo, crushed or greatly diminished the predominance of the clergy, and, in fine, put a stop to the civilization which had commenced, and gave to affairs an entirely new direction. Scattered among the mountains, frequently wandering, separated into various bands, those of the Goths who did not submit to the conquerors, returned, so to speak, toward the life which their ancestors led in the forests of Germany. Roman institutions, Roman maxims, all that collection of laws and ideas which they had received from the clergy, and which had prevailed over their own habits, disappeared almost necessarily in this shock, or at least were retained only by those Goths who remained under the dominion of the Mussulmans. The companions of Pelagius, up to a certain point, became Germans once more, from sheer necessity. It was after this involuntary return to their primitive condition, and, by consequence, to their ancient institutions, that they resumed the offensive against the Arabs, and reconquered Spain by degrees, bringing back with them those political and judicial customs, usages, and practices, which they had partially regained. Free institutions, moreover, could not fail to regain vitality at this period; for they alone can supply strength in times of danger or misfortune. It was not in the power of the customs of the officium palatinum, and of the maxims of the councils of Toledo, to restore the Goths to their subjugated country, and reinstate the descendants of Chindasuinth upon the throne of their fathers. The participation of the people in public affairs, the sternness of Barbarian manners, and the energy of irregular liberty, could alone produce such effects. There is every reason to believe that the institutions of Spain, after the re-establishment of the kingdoms of Castile, Leon, Arragon, &c, were new institutions, and the result of the new position of the Goths, much more than the legacy of the ancient Visigoths. We find proofs of this in the general Cortes of the kingdom, in the constitutions and liberties of the towns, in the whole political order of the State, which has no connection whatever with the old monarchy, and follows much more naturally as a result of the condition and necessities of new monarchies. The political system established by the councils of Toledo and theForum judicum could not have taken deep root; it fell before necessities which it was unable to meet. The Forum judicum itself would perhaps have completely succumbed, had it not continued to be the law of those Goths who had submitted to the yoke of the Moors; it moreover regulated civil order, which is always more firmly fixed, and less influenced by revolutions. It therefore continued, in this respect, to be the general law of Spain; whilst political order assumed a new form and was regulated by other institutions.
The Forum judicum and contemporary authorities are the only true source at which we can study the political institutions of the ancient Visigoths; a source which is doubtless incomplete, and which does not inform us of all that existed; a source which, probably even, especially neglected to gather up what still remained of Germanic manners and habits, but which it is impossible to repudiate in order to admit facts and general institutions which are directly contrary to it. The consequences which I have deduced from these original and contemporary authorities, therefore, still subsist, and determine the true political system of the monarchy of the Visigoths. The imperial government, and ecclesiastical theories, were its constituent elements. These elements prevailed over Germanic customs. They were doubtless modified in order that they might be adapted to a Barbarian people; but, by modification, they gained dominion, and became the general form, the fundamental law, of the State. If the Spanish Goths afterwards entered upon a course more analogous to that pursued by other modern nations of the same origin, it is in the invasion of the Arabs, in the second conquest of Spain by the re-Germanized Goths, and in the effects of this great revolution, but not in the institutions of the monarchy of the Visigoths, that we may discern the causes of this procedure.
end of part 1
ESSAYS OF REPRESENTATIVE GOVERNMENT IN ENGLAND, FROM THE CONQUEST TILL THE REIGN OF THE TUDORS
[1. ]With a vast crowd surrounding.
[2. ]General assemblies.
[3. ]With the entire palace council, with the assent of the priests and the majority of the palace, from the palace council.
[4. ]Mallum: assembly in which important debates were held; placitum: agreement.
[6. ]Commander of a thousand, commander of five hundred, commander of a hundred, commander of ten, defender, keeper of accounts.
[7. ]Hearers, assessors.
[8. ]But who will guard the guardians themselves?
[9. ]Juan de Mariana (1536–1624) was educated at the University of Acala, taught in Paris, and then moved to Toledo, where he remained until his death. He was the author of Historiae derebus Hispaniae and De Rege et regis institutione, an important philosophical treatise on the origin and nature of the state. Karl Friedrich von Savigny (1779–1861) was a distinguished German historian whose most famous work was Geschichte des Römischen Rechts im Mittelalter, translated into English by William Holloway as The History of the Roman Law During the Middle Ages (Westport, Conn.: Hyperion Press, 1979). The article quoted by Guizot and published in Edinburgh Review (vol. 31, pp. 94–132), a review of M. Sempere’s Histoire des Cortés d’Espagne (Bordeaux, 1815), was written by John Allen.
[* ] Edinburgh Review, vol. xxxi., pp. 94–132.
[10. ]The leader of an army, the commander of a militia of a shire or district (also heretogas).
[11. ]The chief officer of the household, court, administration, or military force of a ruler. It derives from comes stabuli, count or officer of the stable, marshal (in the Theodosian Code, ad 438).
[12. ]Such men from those surrounding.
[13. ]Kings are chosen based on virtue.
[14. ]Compurgation is the action of clearing a man from a charge or accusation by the oaths of a number of other citizens. This mode of trial prevalent among the old Teutonic peoples began to lose its importance as trial by jury imposed itself in the twelfth century.