3. The election of the monarch, or the necessity for his recognition, must be the only political guarantee, the only limit affixed to the exercise of actual power. This power, once constituted in this manner, is sovereign; for the depositaries of true sovereignty, which emanates from God, have conferred it upon its possessor by election. It would be absurd and impious to seek for guarantees against its excess in powers of an inferior order, less enlightened and less pure. Therefore, every institution the object of which is either to divide power, or to limit it in its exercise by opposing to it other powers emanating from other sources, is proscribed by this theory. Elective monarchical power is absolute. All the inferior powers necessary for the government of society are derived from it, and are instituted by it in its own name.
These consequences are met with in the legislation of the Visigoths to as great an extent as the necessary incoherence of human affairs will allow.
Political Predominance Of The Bishops.
I. The political predominance of the bishops in the Visigothic monarchy, is a fact evident throughout its history. The councils of Toledo made both the kings and the laws. The principal Gothic laymen who attended and deliberated thereat were few in number, as is proved by the signatures to the canons of the councils. The phrases with which we sometimes meet, cum toto populo, populo assentiente, are mere formulas which pay a kind of homage to ancient facts rather than to present and real facts. Excommunication is the legal punishment decreed against bad kings, against attempts at usurpation, insurrection, and other crimes. The predominance of the bishops was not confined to the councils. The oversight of local functionaries and judges was also intrusted to them, and they had the power of provisionally overruling any judgments of which they disapproved. The bishops and the king were the only persons who could not personally defend their own cause, and who were bound to appear by proxy in such cases, lest their personal presence should influence the decision of the judge. The personal and real privileges granted to the clergy, the facility and perpetuity accorded to donations made to churches, everything in fact in the laws as well as in history, testifies that, in political matters, the bishops occupied the foremost rank, and that their predominance daily increased.
Election Of Kings.
It must not however be supposed that this predominance was unlimited, or that it was established without efforts; it was a difficult task to subjugate a Barbarian king and people to an almost exclusively moral power, and the code of the Visigoths contains several enactments tending to restrain the independence of the clergy, and to keep them under obedience to the civil power. Ecclesiastics of every rank were bound, under the same penalties as laymen, to appear and defend their causes before the civil judges. These same judges were competent to punish licentious priests, deacons, and sub-deacons. The eleventh council of Toledo ordained that bishops guilty of certain crimes should be judged by the ordinary laws, and punished in the same cases as laymen, by the lex talionis. The laws of Wamba compelled ecclesiastics as well as laymen to do military service, and other duties of a corresponding kind. In a word, that clergy which we behold at the head of society and constituting the national assembly almost by themselves, was at the same time less isolated from the civil order, and less constituted as a distinct body by jurisdiction and privilege, than it was elsewhere at the same period. However, the coincidence of these two facts is natural. We feel less need of separation from a society, as we become nearer subduing it.
II. As to the election of kings, which may be regarded as the natural consequence of the system, or simply of the theocratic tendency, it is formally laid down as a principle in the Forum judicum, and was the common law of the Visigothic monarchy: but we must not mistake as to the origin and character of this institution; in Spain, it was much less an institution of liberty than an institution of order, a means of preventing civil wars and the disorders attendant upon usurpations.
From causes difficult to discover, the principle of the regular hereditariness of royalty did not prevail among the Visigoths as among the other Barbarian peoples. The throne at the death of the kings, and even during their lifetime, was the object aimed at by a host of ambitious individuals, who contested for it vi et armis, and seized or lost it according to the powers of the claimants and their factions. It was against this state of things, much more than with a view to establish or maintain the right of the nation to choose its own sovereign, that the election of the monarch by the bishops and grandees assembled in council at Toledo, was instituted. The text of the law clearly lays this down. "Henceforth the sovereigns shall be chosen for the glory of the kingdom, in such sort that, in the royal town, or in the place in which the prince shall have died, his successor shall be chosen by the consent of the bishops, the grandees of the palace, and the people: and not at a distance by the conspiracy of a few perverse persons, or by a seditious tumult of an ignorant multitude." Various canons of the fifth, sixth, seventh and thirteenth councils of Toledo, inserted as laws in the Forum judicum, have as their only object the repression of attempts at usurpation, and interdict all seizure of the throne by force, determine what classes of men can never be eligible to the kingly office, and also guarantee the lives and property of the families of the dead kings, against the violence and avidity of their elected successors. In a word, all tends to prove that this election was intended to counteract violent usurpation much more than to prevent regular hereditary succession.