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.
Character Of Visigothic 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 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.
Laws Of The Forum Judicum.
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).