RECESUINTH AND DIVINE RIGHT. 213 the special employment of the Roman law in his dominions. In 649, he associated his son Recesuinth with him in the crown, and obtained his recognition as his successor. On opening the eighth council of Toledo, Recesuinth said; "The Creator raised me to the throne by associating me in the dignity of my father, and by his death the Almighty has transmitted to me the authority which I have inherited." These words are the expression of the theory of divine right. Recesuinth directed the council to revise and complete the collection of laws; imposed a fine of thirty pounds of gold on any one who should appeal to any other than the national law; permitted marriages between the Romans and Goths, which had been until then interdicted; revoked the laws of his father against the emigrants; and restored a portion of the confiscated property. A law was also passed, separating the private domain of the king from the public domain. The preponderance of the bishops in the council is evident. The canons are signed by seventy-three ecclesiastics, and by only sixteen counts, dukes, or proceres. Recesuinth died on the 1st September, 672. 16. Wamba, elected on the 19th September, 672, manifested great repugnance to accept the crown. He repressed the rebels in Gothic Gaul, and besieged Narbonne and Nismes. He also vigorously opposed the descents of the Saracens, who were beginning to infest the coasts of Spain, as the Normans were infesting those of Gaul. He fortified Toledo and many other towns. During his reign the division of the kingdom into dioceses took place; six archbishoprics and seventy bishoprics were established. Wamba made several laws for organizing military service, and repressing the excesses of the clergy. The 17. In 680, Wamba was deposed by the intrigues of Erwig, who was supported by the clergy. Wamba abdicated, and withdrew to a convent. Erwig convoked the twelfth council of Toledo, at which Wamba's voluntary abdication was announced, and Erwig appointed his successor. new monarch directed the council to revise and modify the laws of Wamba regarding military service, and the penalties to be imposed upon delinquents. A less severe legislation was the work of the twelfth and thirteenth councils of Toledo. 214 THE FORUM JUDICUM. 18. Erwig had given his daughter Cixilone in marriage to Egica, a near relation of Wamba. In 687, Egica succeeded Erwig. He charged the sixteenth council of Toledo to make a complete collection of the laws of the Visigoths; and this collection, under the name of the Forum judicum, or Fuero juzgo, long ruled the Spanish monarchy. 19. Egica had associated with himself his son Witiza, who succeeded him in 701. Witiza was tyrannical and dissolute. He allowed the priests to marry, recalled the Jews, entered into conflict with the Spanish clergy and the Pope; violently persecuted the principal lay lords, among others Theutfred and Favila, dukes of Cordova and Biscay, and sons of king Chindasuinth; and fell a victim, in 710, to a conspiracy formed against him by Roderic, son of Theutfred. Roderic, or Rodrigo, became king of the Visigoths, and his reign was the last of this monarchy. I shall not relate to you his wars with the Saracens, or the celebrated adventure of Count Julian and his daughter La Cava, who was violated by Roderic, or any of the last scenes of this history which have now become popular poetry.* Political institutions are now the sole subject of our study. In my next lectures, I shall tell you of the Forum judicum, a very remarkable legislative work, which deserves our serious examination and attention. * For the legend of Count Julian, and other information regarding this most interesting period of Spanish history, see Washington Irving's Legends of the Conquest of Granada and Spain," in Bohn's edition of his works. CHARACTER OF VISIGOTHIC LEGISLATION. 215 LECTURE XXV. Peculiar character of the legislation of the Visigoths.-Different sorts of laws contained in the Forum judicum.-It was a doctrine as well as a code.-Principles of this doctrine on the origin and nature of power.-Absence of practical guarantees.-Preponderance of the clergy in the legislation of the Visigoths.-True character of the election of the Visigothic kings.-The Visigothic legislation characterized by a spirit of mildness and equity towards all classes of men, and especially towards the slaves.-Philosophical and moral merits of this legislation. 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 216 LAWS OF THE FORUM JUDICUM. 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, 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 VISIGOTHIC THEORY OF LAW. 217 character of law, and the right and duty of the legislator. All legislations suppose some solution or other to these primary questions, and conform thereto; but it is by a secret bond, frequently unknown to the legislator himself. The law of the Visigoths has this singular characteristic, that its theory precedes it, and is incessantly recurrent in it-a theory formally expressed, and arranged in articles. Its authors wished to do more than ordain and prohibit; they decreed principles, and converted into law philosophical truths, or what appeared to them to be such. This fact alone indicates that the Forum judicum was the work of the philosophers of that period; I mean, the clergy. Never did such a proceeding occur to the mind of a new people, still less to a horde of Barbarian conquerors. Assuredly a doctrine which thus serves as preface and commentary to a code, merits our best attention. "The law," says the Forum judicum, "is the emulator of divinity, the messenger of justice, the mistress of life. It regulates all conditions in the State, all ages of human life; it is imposed on women as well as on men, on the young as well as on the old, on the learned as well as on the ignorant, on the inhabitants of towns as well as on those of the country; it comes to the aid of no particular interest; but it protects and defends the common interest of all citizens. It must be according to the nature of things and the customs of the State, adapted to the time and place, prescribing none but just and equitable rules, clear and public, so as to act as a snare to no citizen." In these ideas on the nature and object of written law, the fundamental idea of the theory is revealed. There is an unwritten, eternal, universal law, fully known to God alone, and which the human legislator seeks after. Human law is good only in so far as it is the emulator and messenger of the divine law. The source of the legitimacy of laws is, then, not to be found on earth; and this legitimacy originates, not in the will of him or them who make the laws, whoever they may be, but in the conformity of the laws themselves to truth, reason, and justice-which constitute the true law. 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 |