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Lecture 25
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LECTURE 25 Peculiar character ofthe legislation ofthe Visigoths. ~ Different sorts of laws containedin the Forum judicum. ~ It was a doctrine as wellas a code. ~ Principles ofthis doctrine on the origin and nature ofpower. ~ Absence ofpracticalguarantees. ~ Preponderance ofthe clergy in the legislation ofthe Visigoths. ~ True character ofthe election ofthe Visigothic kings. ~ The Visigothic legislation characterized by a spirit ofmildness and equity towards all classes ofmen, and especially towards the slaves. ~ Philosophicaland moral merits ofthis legislation. OFall the Barbarian codes oflaw, that ofthe Visigoths is the only one which remained in force, or nearly so, until modern times. We must not expect to find in this code itselfthe only, or even the principal, cause ofthis 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 ofits 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, Lornbards , and others, the law of the Barbarian conquerors. It was the general law ofthe 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 ofthe Goths written out. Alaric II., who ruled from 484 to 507, collected and published in the BreviariumAniani, the Roman laws which were applicable to his Roman subjects. Chindasuinth, who reigned from 642 to 652, ordered a revision and completion ofthe Gothic laws, which had already been frequently revised and augmented since the time ofEuric; 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 ofthe two REPRESENTATIVE INSTITUTIONS IN ENGLAND, FRANCE, AND SPAIN nations, and ruled by one single code oflaws, comprising the essential parts of the two codes. Thus, whilst the system of personal laws, or laws based on the origin ofindividuals, prevailed in most ofthe Barbarian monarchies, the system ofreal laws, or laws based upon land, held sway in Spain. The causes and consequences ofthis fact are ofgreat importance. Four different kinds oflaws may be distinguished in the Forumjudicum. 1. Laws made by the kings alone, in virtue oftheir own authority, or merely with the concurrence oftheir privy council, o.fficiumpalatinum. 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, ofthe people. At the opening ofthe council, the king proposed, in a book called tomus regius, the adoption ofnew laws or the revision ofold ones; the council deliberated thereupon; and the king sanctioned and published its decisions. The influence ofthe 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 Forumjudicum, as we possess it at the present day, is a code formed of the collection ofall these laws, as finally collected, revised, and arranged at the sixteenth council ofToledo, by order of King Egica. The most ancient Castilian version ofthe Forumjudicum appears to have been made during the reign of Ferdinand the Saint (I2JO-I252). 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 oflaws, are preceded by a theory on the origin and nature ofpower, the object and philosophic character of law, and the right and duty ofthe 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 himsel£ 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...