It is difficult to determine with precision the different functions of all these magistrates, the hierarchy which existed among them, and the manner in which each of them received and exercised his power. Those who belonged to towns, as the defensor and the numerarius, were certainly elected by the clergy and inhabitants. Several others, as the millenarius and centenarius, seem to have been appointed by the dukes and counts of the provinces; but however this may be, nothing indicates that they received their authority in a popular and independent way; the opposite principle is formally laid down in these terms: "No one shall be permitted to judge suits, except those who have received power from the prince to do so, or those who have been chosen as judges, by agreement of the litigants; the choice of these last shall be made in presence of three witnesses, and shall be attested by their mark or signature. If those who have received from the king power to judge, or those who exercise judicial power by commission from the counts or other royal judges, have charged, by writing, and according to the prescribed rules, other persons to fill their places, these last shall exercise, in the regulation and decision of affairs, a power similar to that of those by whom they were appointed." Thus, all the judges, all the local officers, received their power from the king or his delegates. Of the three systems of institutions, whose co-existence and conflict are manifested amongst most of the German peoples, the monarchical system is the only one with which we meet in the code of the Visigoths.
In addition to the permanent judges, established in various localities, the kings had power to send special commissioners, either to restore order in disaffected provinces, or to give judgment in cases of particular importance. Criminal as well as civil affairs were submitted to the decision of the royal judges. All these judges received salaries from the king; but they also levied such enormous fees on the litigants, that the fees frequently amounted to one-third of the value of the object in litigation, A law was passed, limiting them to one-twentieth. Any who thought they had reason to complain of the decision of the judge might appeal, either to the duke or count of the province, or to the king himself. If the appeal was deemed well-founded, in addition to gaining the cause, the judge had to pay the appellant a sum equal to the value of the object in litigation. If the judgment was confirmed, the appellant had to pay the same amount to the judge, and if he could not do so, he was condemned publicly to receive a hundred lashes.
Constitution Of Judicial Authority.
Up to this point, nothing in the constitution of judicial authority exhibits any of those guarantees of liberty contained in the laws of the other Barbarian peoples. Nothing discloses any remnant or even remembrance of the old forms of judgment by the assembly of free men, per Rachimburgos, bonos homines, &c. Some passages of the Forum judicum, however, prove that the judges, at least, had assessors. The fourth council of Toledo formally prohibits the kings from administering justice alone; and several texts allude to auditores. Most learned men, and amongst others Heineccius, are of opinion that the assessors were not mere councillors; and that the judge was bound to take the opinions of a majority of them. I am inclined to think so too. Several texts, however, formally indicate that the judge was at liberty to take assessors or not, as he pleased.
Laws Against Bad Judges.
In the absence of those real guarantees of liberty, which originated elsewhere in the more or less effectual intervention of the freemen in the judgment of cases, the Forum judicum contains a multitude of precautions or laws against bad judges. In case of appeal to the count or king, if it were proved that the wrong decision of the judge was occasioned by malice, corruption, or prevarication of any kind, and if he were unable to pay the appellant the requisite sum, he was given to him as a slave, and condemned to receive besides fifty lashes in public. He was absolved from all penalty, however, if he proved, under oath, that his decision was pronounced in error or ignorance. The judges who neglected to prosecute the licentious were punished with a hundred lashes, and fined 300 solidi. The priests and bishops everywhere were enjoined to exercise a strict surveillance over the judges; and as the former then derived their chief strength from their superior knowledge and their protection of the weak, it is not unlikely that this guarantee was effective.
But all this was defective, as you perceive, by the radical defect of the system of pure monarchy, which gives, as the only guarantee for the good conduct of the depositaries of power, the surveillance and authority of superior depositaries placed in the same position, and invested with the same functions.
… Sed quis custodiet ipsos
Custodes? …
The true guarantees of liberty can only reside in the concurrence of collateral and independent powers, none of which is absolute, and which mutually control and limit each other. Of this the Forum judicum affords us no trace, at any stage in the long hierarchy of the government.