History of the Origin of Representative Government in Europe

by François Guizot

The local government of the Visigoths, then, presents still fewer institutions containing any active principle of liberty, any real force of control or resistance, than are found in their political régime, and at the centre of the State. Such is, at least, the unavoidable result to which we are led by an examination of the general and definitive code of this nation.

This result has appeared so singular, so opposed to German customs, and to the state of things among other peoples of the same origin, that hardly any man of erudition has been willing to read it in the Forum judicum; and that those even who have failed to find in this code any proof of the existence of free institutions, and almost any trace of old Barbarian institutions, have striven to discover them elsewhere in Spain at this period.

Views Of M. De Savigny.

I shall say nothing of Abbé Mariana, who, in his Teoria de las Cortes, is determined to discover, in the councils of Toledo, not only the Spanish Cortes of the thirteenth and fourteenth centuries, but also all the principles and guarantees of liberty—all, in fine, that constitutes a national assembly and a representative government. I have already demonstrated the moral improbability and the historic unreality of the fact. Two more learned men than Abbé Mariana, and less inclined than he to find what they seek, have thought that they perceive, in the Forum judicum, proofs that the purely monarchical system, associated with the theocratic system, did not prevail so completely among the Visigoths; and that they can discover among them evidences of effective and extended public liberties: I refer to M. de Savigny, in his History of Roman Law in the Middle Ages, and to a writer in the Edinburgh Review, [Footnote 18 ] in an article on The Gothic Laws of Spain. I do not think that the researches of these two learned critics destroy the general results which I have just laid before you. They nevertheless contain many curious facts hitherto little noticed, and which throw much light on the study of the political institutions of the Visigothic monarchy. I shall, therefore, make you acquainted with them, and examine the consequences to which they lead.

[Footnote 18: Edinburgh Review, vol. xxxi., pp. 94-132.]

M. de Savigny, when investigating the traces of the perpetuation of the Roman law after the fall of the Empire, expresses himself in these terms, in reference to the Visigoths: "Upon the constitution of this monarchy," he says, "we possess sufficiently complete information in the Breviarium Aniani, who, about the year 506, that is, nearly a century after the foundation of the State, drew up the Roman law into a sort of code for the ancient inhabitants of the country. This code consists, as is well known, of two parts: one contains texts quoted word for word from the Roman law; the other an interpretation specially prepared on this occasion. With regard to the texts quoted from the Roman law, we cannot attach great importance to them, when we speak of the real state of things at the period of this publication; as they were drawn from sources much more ancient, expressions and even entire phrases were necessarily retained which had reference to various circumstances of a social state that had already passed away and fallen into desuetude; the interpretation was intended to explain this disagreement. But this interpretation, drawn up ad hoc, is, on the other hand, very trustworthy, especially when it does not implicitly follow either the words or the sense of the text, for then we can no longer regard it as a servile and thoughtless copy, especially in what relates to matters of public law. It is impossible to believe that real establishments, institutions set before the eyes of all, and with which all might be acquainted, could have been mentioned unintentionally and described without an object. Now, in this interpretation, the Roman præses has entirely disappeared; but the municipal community, with its particular jurisdiction and its decurions taking part in the administration of justice, subsists in all its integrity: it even appears to possess more individual consistency and independence than it had enjoyed under the emperors.

The Defenders Of Cities.

"The general principle of the defensores, of their duties and the mode of choosing them, is explained in the interpretation, as well as in the text of the Theodosian code. According to the text, the governor of the province was not to be burdened with the judgment of petty offences; but it does not mention who was to judge them, whereas the interpretation expressly names the defensor. According to the text, the introduction of a civil suit might take place either before the governor, or before those who had the right to draw up the necessary acts; the interpretation adds the defensor. …"

M. de Savigny then quotes a number of other examples to prove the maintenance, and even extension, of the functions of the defenders of the cities. "Other passages," he continues, "have reference to the curia, the decurions, and even to the citizens in general. The system of decurions, in general, is received in the Breviarium, with very few modifications, but merely great abridgement. To one passage of the text which casually mentions adoption, the interpretation adds, as a commentary, that it is the choice of an individual as a child, made in presence of the curia. The Visigothic jurisconsult, Graius, says, that emancipation, which formerly took place before the president, was, at the period at which he wrote, performed before the curia."