Historical facts lead us to the same result. The succession of the Visigothic kings was a series of violent usurpations. Scarcely do we meet with one or two examples of veritable elections, made freely and without any anterior constraint, in consequence of the throne falling vacant. Almost always the election by the council only sanctioned the usurpation; and at the same time that we may doubt of its liberty, we see that its special object is to prevent the return of a great disorder. Neither is there anything to indicate that when, by reason of the preponderance of a more powerful or more popular king, the principle of hereditary succession was on the point of introducing itself, the councils either attempted to oppose its entrance, or considered the act as an infraction of their fundamental law. In every circumstance, at this period, in this state of society, and particularly in great monarchies, the want of order, of rule, of some check to restrain the irregular operation of force, was the dominant want felt by men who, like the bishops, were much more enlightened and much more civilized than the Barbarian conquerors; and political institutions, as well as civil laws, were framed rather with this object than with a view to the assurance of liberty.
Progress Of Ecclesiastical Pretensions.
Such being its true nature, the election of the kings by the councils of Toledo could evidently not have rested entirely in the hands of the clergy. Armed and ambitious Barbarians would not have endured patiently to receive the crown at the will of bishops, nearly all of whom were Romans. Originally, the bishops exercised, in fact, no other right than that of sanctioning present usurpation, by anathematizing similar conduct in the future. In proportion as their moral influence and real power became consolidated and extended, they attempted higher things, and appeared to aspire to the famous right of giving and taking away the crown. The Forum judicum furnishes two remarkable proofs of this progress. The fourth council of Toledo, held during the reign of Sisenand, in 671, decreed by its seventy-fifth canon, "that when the king had died in peace, the grandees of the realm and the bishops should elect his successor, by common consent." At a later period, when this canon was transported as a law into the national code, it was amplified in these terms: "Let no one, therefore, in his pride, seize upon the throne; let no pretender excite civil war among the people; let no one conspire the death of the prince; but, when the king is dead in peace, let the principal men of the whole kingdom, together with the bishops, who have received power to bind and to loose, and whose blessing and unction confirm princes in their authority, appoint his successor by common consent and with the approval of God." A similar interpolation occurs in the insertion of a canon of the eighth council, which began: "We, the bishops, priests, and other inferior clerks, in concert with the officers of the palace, and the general assembly, decree," &c. In the Forum judicum, after the word priests, these words are added: "Who have been established by our Lord Jesus Christ, to be the directors and heralds of the people," Such phrases as these clearly indicate the progress of ecclesiastical pretensions, and their success. It is, however, certain as a fact, that the councils of Toledo never really disposed of the crown, but that it was almost always taken by force; and that the election of the kings by the grandees and bishops, though established as a principle by the laws, must not be considered as a proof either of the complete predominance of the theocratic system, or of the extent of the national liberty.
Duties Of The Sovereign.
III. But if, after having ascertained who possessed the right of appointment to the highest political office, and the mode in which this office was conferred, we endeavour to discover, from the laws of the Visigoths, what duties were imposed on their kings, and what guarantees they gave their subjects for the performance of those duties, the consequences which we have already indicated, as likely to result from the theory that presided over this code, become clearly revealed. Good precepts abound, but real guarantees are wanting.
To those who read these laws, the legislator appears much better aware of the duties of the sovereign, and of the rights and necessities of the people, than were the other Barbarian legislators; and, in fact, he was so. But if they next inquire where were the independent forces capable of procuring or insuring the maintenance of these principles, and how the citizens exercised their rights or defended their liberties, they find absolutely nothing. The code of the Visigoths, though more enlightened, more just, more humane, and more complete than the laws of the Franks or Lombards, left despotism at greater liberty, and almost entirely disarmed freedom. Texts in abundance might be quoted in support of this assertion.
If, from these general principles, we descend to the details of legislation, we shall find that the code of the Visigoths was, in this respect also, much more provident, more complete, more wise, and more just, than any other Barbarian code. The various social relations were much better defined therein; and their nature and effects more carefully analyzed. In civil matters, we meet with repetitions of the Roman law at almost every step; in criminal matters, the proportion of punishments to crimes was determined according to moral and philosophical notions of considerable justice. We discern therein the efforts of an enlightened legislator struggling against the violence and inconsiderateness of Barbarian manners. The title, De cœde et morte hominum, compared with the corresponding laws of other peoples, is a very remarkable example of this.