228 PRESENCE OF A GOOD PRINCIPLE. 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 costacies beneath which it has succumbed. DEFECT OF VISIGOTHIC LEGISLATION. 229 LECTURE XXVI. Central institutions of the Visigothic monarchy.-True character of the Councils of Toledo.-Amount of their political influence.-The Officium palatinum.-Prevalence of Roman maxims and institutions, among the Goths, over Germanic traditions.-Proof of this in the local and central institutions of the Visigoths.-Refutation of the errors of Savigny and the Edinburgh Review on this subject. -Conclusion. My last lecture, I think, convinced you, gentlemen, that the code of the Visigoths, taken in itself, and in its intentions as expressed by written laws, gives the idea of a better social state, a juster and more enlightened government, a better regulated country, and, altogether, a more advanced and milder state of civilization, than that which is revealed to us by the laws of the other Barbarian peoples. But to this more humane and wise legislation, to the general principles dictated by superior reason, there is wanting, as I have already observed, an actual sanction, an effective guarantee. The laws are good; but the people, for whose benefit they were enacted, have hardly any share in their execution, and the business resulting therefrom. Up to a certain point, the code bears testimony to the wisdom and good intentions of the legislature; but it presents no evidence of the liberty and political life of the subjects. Let us first look at the centre of the State. The single fact of the political predominance of the bishops, the sole name of the councils of Toledo, indicate the decay of the old Germanic customs, and the disappearance of national assemblies. The Anglo-Saxons had their Wittenagemot; the Lombards their assembly at Pavia, circumstante immensâ multitudine; the Franks their Champs de Mars and Champs de Mai, and their placita generalia. Doubtless, the existence of these assemblies entailed scarcely any of the consequences which we attach at the present day to the idea of such institutions; and they certainly constituted a very slight guarantee of liberty, which it was then impossible to gua 230 THE COUNCILS OF TOLEDO. rantee. 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 the placita generalia of the Carlovingians, at fixed, or at least, frequent periods. Between the third and fourth councils, forty-four years elapsed; between the tenth and eleventh, eighteen years. The king convoked them at his pleasure, or as necessity required. The Visigothic code ordains absolutely nothing in this respect, either on the kings, or on the members of the assembly. None of its THEIR POLITICAL INFLUENCE. 231 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 232 POSITION OF THE VISIGOTHIC BISHOPS. 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 |