M. de Savigny foresaw this objection; and without absolutely dissembling it, he has tried to weaken it by not quoting the text of the law of Recesuinth, and by speaking only of the attempts made by the Visigothic kings, that Spain should contain only a single nation, and be governed by a single code. These evasions are in striking contrast with his usual candour. He then makes use of the existence of the defensores, proof of which is found in the Forum judicum, to assume the maintenance of all the prerogatives and liberties attributed to them by the Breviarium. This conclusion is evidently hasty and excessive.
I do not dispute that the towns of Spain were able to retain, or indeed that they did necessarily retain, some institutions, some guarantees of municipal liberty. I should not infer their absolute disappearance from the silence of the Forum judicum. The despotism of the Barbarian kings, however careful it may have been to gather the heritage of Roman maxims, was neither as wise nor as circumstantial as that of the emperors. It allowed the curiæ and their magistrates to continue in existence, and these petty local powers assuredly had more reality and independence under its rule than they had possessed under the Empire. The clergy, principally dwelling in the towns, and bound by strong ties to the Roman race, was itself interested in protecting them, and the more so, because it naturally placed itself at the head of the municipalities. Thus much is certain, that the remnants of institutions of surety and liberty which existed there, occupy no place in the written laws, although these laws are much more detailed than those of other Barbarian peoples, and embrace the whole civil order. They could not, therefore, be considered as forming a part of the general constitution of the kingdom; they neither modified its political character, nor changed the results of the principles that prevailed therein.
Gothic Laws Of Spain.
If M. de Savigny has looked for the institutions of the Visigoths in an epoch anterior to the definitive establishment of their true monarchy, and in a collection of laws abolished by the Forum judicum, the author of the dissertation contained in the Edinburgh Review has addressed his inquiries to times and documents posterior by four or five centuries to the destruction of the kingdom of the Visigoths by the Arabs; and by transporting the consequences which he has obtained therefrom into the epoch which occupies our attention, he has fallen into an error still less supported by facts than was that of M. de Savigny. His researches and inferences are the following:—
"It must not be supposed that the whole body of the law of the Visigoths appears in the twelve books of their code. They had their common or traditionary law, still existing in unwritten usages and customs, as well as their written law; and we are supported by analogy in asserting that this common law often spoke, when the statute law was silent. It outlived the monarchy; and we now collect it from the Fueros or ancient customs of Castile and Leon. The customs in question are preserved in the charters of the towns, which gave bye-laws to the inhabitants, confirming the unwritten common law of the country, sometimes with greater or lesser modifications in the detail, but agreeing in general principles. We equally discover them in the acts of Cortes, which, to borrow the expression of Sir Edward Coke, are often 'affirmances of the common law.' The traditionary Fueros of Castile also formed the basis of the Fuero Viejo de Castilla, which received its last revision under Peter the Third. And even Alonso the Wise, though he planned the subversion of the ancient jurisprudence of his kingdom, admitted into the Partidas such of those Fueros de España as relate to the tenures of land, and to military service. Consisting of ancient usages, neither refined by the learning of the councils nor restrained by the power of the kings, the Fueros of Castile and Leon bear a nearer affinity to the jurisprudence of the Teutonic nations than the written code. The water ordeal is noticed only once, in a law newly amended by Flavius Egica. But ordeal by compurgation, the most ancient form of trial by jury, and the battle ordeal, do not appear at all. Neither do we find any notice of the custom of returning military leaders by the verdict of a jury. All these customs, however, were Fueros of Spain in the Middle Ages. Nor could they possibly have then existed, had they not been preserved by immemorial usage and tradition."
Election Of Adalides.
The author then passes these ancient usages in review. The first to which he refers is the appointment of military leaders by a jury. He traces this custom back to the forests of Germany: and then shows how it could not fail to succumb universally beneath the establishment of the feudal system, and in consequence of the hierarchical subordination of persons and lands. He discovers traces of this in the nomination, by the people, of the Anglo-Saxon heretochs and constables, who were at first military officers; and also in the election of the kings of Norway by the verdicts of twelve of the principal men of each province. He then returns to Spain, "where," he says, "we shall find our old Gothic juries employed in electing the chief officers of the army and navy of the Castilians, the Adalid, the Almocaden, the Alfaqueque, and the Comitre. Who was to be the Adalid? The question must be answered in the words of the wise king Alonso. It is said by the ancients that 'the Adalid should be endowed with four gifts—the first is wisdom, the second is heart, the third is good common sense, and the fourth is loyalty; and when a king or any other great lord wishes to make an Adalid, he must call unto himself twelve of the wisest Adalides that can be found, and these must swear that they will truly say, if he whom they wish to choose to be an Adalid hath the four gifts of which we have spoken, and if they answer yea, then they are to make him an Adalid.'" Here we have clearly an inquest by twelve men giving their verdict upon oath. If it happened that twelve Adalides could not be found, then a kind of tales de circumstantibus was added to this special jury of Adalides. The king or lord was to make up the full number of twelve with other men well approved in war and deeds of arms, and their verdict was as good as if they had been all Adalides. And he who dared to act as an Adalid without being fully elected, was to suffer death. "It was advised in ancient times," says Alonso, "that they were to have the qualities before mentioned, because it was necessary that they should possess them, in order to be able to guide the troops and armies in time of war, and therefore they were called Adalides, which is equivalent to guides (que quiere tanto decir como guiadores)."