Importance Of The Curia.
"The text determines by whom tutors were appointed at Constantinople, namely, by the prefect of the city, ten senators, and the prætor, whose duty it was to watch over the interests of the pupils: the interpretation substitutes in their place the judge, with the chief men of the town. The text speaks of the necessity of a decree to authorize the alienation of the property of a minor: the interpretation adds, that this decree must be obtained from the judge or the curia. The text ordains that, at Constantinople, wills should be opened by the same office that received them: the interpretation substitutes the curia in its place. According to the text, donations should be registered either before the judge (the governor of the province), or before the municipal magistrate (the duumvir): the interpretation substitutes the curia for the municipal magistrate—which does not, in reality, alter the sense of the law, but which proves what is demonstrated by many other passages, that the general point of view was completely changed; anciently the chief municipal authority, and especially jurisdiction, was considered, according to Roman maxims, to be a personal right of the magistrate: according to the interpretation, it belonged less to the defensor himself, than to the curia taken collectively. … Under the emperors, the honorati, that is, those who had occupied high municipal dignities, had a seat of honour near the governor of the province when he administered justice; they were only expected to abstain from being present when their own causes were under consideration. The interpretation applies this to the curials; an application which is remarkable in two respects, first, because it proves that the curials were held in great consideration, and secondly, because this does not merely refer to the possession of a seat of honour by them, but to an actual participation in the jurisdiction of the municipal judge, that is, of the duumvir or defensor. … The text of the code ordains that, out of Rome, in order to pronounce sentence on a criminal accusation brought against a senator, five senators shall be chosen by lot: the interpretation makes this rule general, and requires five men to be chosen from the leading members of the same rank as the accused person, that is, decurions or plebeians, according to the condition of the accused person himself. Finally, the text ordained that every judge should receive his domesticus or cancellarius from the choice of the principal persons employed in his chancery: the interpretation retains the rule, merely substituting the burgesses of the city for the persons employed in the chancery."
Objections To Savigny's Theory.
Such are the traces of municipal liberties which M. de Savigny discovers in the Breviarium Aniani, and which he considers as the common and permanent law of the Visigothic monarchy. They prove, in fact, not merely the maintenance, but also the extension and enfranchisement, of the rights and guarantees possessed by the inhabitants of the towns before the settlement of the Barbarians. But strong objections may be raised against the importance which the author attaches to these texts, and the extent of the conclusions which he deduces therefrom.
I. The Breviarium Aniani does not contain the common and permanent law of the Spanish monarchy of the Visigoths. It only gives the special legislation of the Roman subjects of the Visigothic kings, when the kings resided at Toulouse, and had as yet only uncertain possessions in Spain; when the South of Gaul constituted the bulk, and almost the whole, of the kingdom. There is nothing to prove that all that is contained in the Breviarium Aniani, towards the end of the fifth century, for the benefit of the Romans of Southern Gaul, subsisted in Spain until the eighth century, for the benefit of the Goths and Romans, when merged into a single nation. The silence of the Forum judicum, which is the true code of the Spanish Visigoths, upon most of these arrangements, proves more against their maintenance than is demonstrated in their favour by the text of the Breviarium, which was drawn up in another place, at an earlier period, and for a portion only of the people.
Abolition Of The Breviarium Aniani.
II. About a hundred and fifty years after the publication of the Breviarium, the Goths and Romans were united into a single nation. The collection of laws, successively augmented under the different reigns, and completed by Chindasuinth, became the sole code of the kingdom; all other laws were abolished, and the Breviarium was necessarily included in this abolition. The text of the law of Recesuinth is formal: "That absolutely none of the men of our realm be permitted to lay before the judge, for the decision of any affair, any other collection of laws than that which has just been published, and according to the order in which the laws are inscribed therein; and this, under penalty of a fine of thirty pounds of gold to our treasury. Any judge who should hesitate to decline any other book that might be presented to him as suited to regulate his decision, will be punished by the same fine."