Part 1 — Part I. Representative Institutions In England, France, And Spain, From The Fifth To The Eleventh Century. (continued 5)

Lecture XXII.

Political institutions of the Visigoths. Peculiar character of Visigothic legislation. Its authors and its influences. Destruction and disappearance of the middle class in the Roman empire, at the time of the Barbarian invasion. History of the Roman municipal system. Three epochs in that history.

Laws Of The Visigoths.

In conformity to the plan which I sketched out for our guidance at the commencement of these lectures, I have studied with you the political institutions of the Anglo-Saxons and Franks, from the fifth to the tenth century. I now come to those of the Visigoths, the third of the Barbarian peoples established in the Roman empire, about whom I propose to give you some information.

On opening the collection of the laws of the Visigoths, it is impossible not to be struck with the compactness which distinguishes them. The Franks and Burgundians have laws partially anterior to their establishment upon the Roman territory; customs handed down and gathered together from age to age. The Visigoths have a code which was systematically drawn up, and promulgated on an appointed day.

This fact alone indicates that the laws of the Visigoths were not the work of the Barbarians themselves. The influence of the clergy, indeed, was more potent among the Visigoths than among the other Barbarian conquerors; not only did the clergy take part in their government, but they acted as their civil and political legislators. The Visigothic code was their work. How did this happen?

Before the foundation of the Barbarian States, under the dominion even of the last Roman emperors, the power of the new religion gradually placed the Christian clergy at the head of the peoples; the bishop was the defender and chief of the towns. After the conquest, the Barbarians embraced the religion of the vanquished; and as the Christian clergy were powerful in the towns, by virtue of the municipal institutions, they used every effort to preserve to the municipal system its form and efficacy. In this they succeeded to a great extent. It is therefore of essential importance to have some precise knowledge of the Roman municipal system and its vicissitudes until the period of the great Barbarian invasions, in order properly to understand the condition of the urban populations at that epoch, and the part which their clergy played in their new position, especially in the kingdom of the Visigoths.

Fall Of The Roman Empire.

As I have already observed, the fall of the Roman empire in the West is a strange phenomenon. Not only did the population not support the government in its struggles against the Barbarians, but the population, when left to itself, did not attempt any resistance on its own behalf. More than this—nothing, during this protracted conflict, revealed the existence of a nation; scarce any allusion is made to what it suffered; it endured all the scourges of war, pillage, and famine, and suffered an entire change in its destiny and condition, without acting, speaking, or even appearing.

This phenomenon is not merely strange, it is unexampled. Despotism has reigned elsewhere than in the Roman empire; more than once, foreign invasion and conquest have devastated countries that had long groaned beneath a tyrannical government. Even where the nation has not resisted, its existence has been manifested in some manner in history. It suffers, it complains, and, notwithstanding its humiliation, it struggles against its evil fate; narratives and monuments attest what it experienced, what it became, and if not what it did, at least what was done with it.

In the fifth century, the remnants of the Roman legions disputed with hordes of Barbarians the possession of the immense territory of the empire, but it seemed as if this territory were a desert. When the soldiers of the empire had departed or been defeated, mention is made of no other person or thing. The Barbarian tribes seize upon the provinces in succession; beside them, facts exhibit to us only one other real and living existence, that of the bishops and the clergy. If the laws did not remain to inform us that a Roman population still covered the soil, history would give us good reason to doubt its existence.

State Of The Roman Colonies.

It was especially in the provinces which had long been subject to Rome, and wherein civilization was more advanced, that the people thus disappeared. We look upon the letter of the Britons, tearfully imploring the assistance of Aetius and the despatch of a legion, as a singular monument of the cowardice of the subjects of the empire. This astonishment is unjust: the Britons, being less civilized and less Romanized than the other subjects of the empire, resisted the Saxons, and their resistance has a history. At the same period, under similar circumstances, the Italians, the Gauls, and the Spaniards have no history; the empire withdrew itself from their country, and the Barbarians took possession of it, without the mass of the inhabitants taking the least part in the transaction, or giving the slightest indication of the place they occupied in the events which gave them over to so many scourges.

Nevertheless Gaul, Italy, and Spain were covered with towns, which had lately been wealthy and populous; civilization had there received a splendid development; roads, aqueducts, circuses, and schools, were abundant. Everything that can attest wealth, or procure for a nation an animated and brilliant existence, they possessed. The invasions of the Barbarians occurred to pillage them of all their wealth, to disperse all their friendly meetings, to destroy all their pleasures. Never had the existence of a nation been more completely overthrown; never had individuals had more evils to endure and more dangers to apprehend. Whence came it that the populations were dumb and dead? How is it that so many sacked towns, so many ruined positions, so many blasted careers, so many ejected proprietors, have left so few traces, I do not say of their active resistance, but only of their sufferings?

The despotism of the imperial government, the degraded condition of the people, the profound apathy which had seized upon both masters and subjects, have been alleged to account for this—and justly so: therein consisted the great cause of this strange phenomenon. But it is easy thus to enunciate in a general manner a cause which, though apparently in existence elsewhere, did not elsewhere produce the same results. We must penetrate more deeply into the state of Roman society, in the condition to which it had been reduced by despotism. We must inquire by what means it had been so utterly deprived of all consistency and life.

Roman Municipal System.

Despotism can clothe itself in very different forms, and exhibit itself in proceedings which impart to its action a far higher energy, and give a far wider scope to its consequences.

The great fact which had resulted from the system of imperial despotism, and which alone can explain the phenomenon of which I speak, is the destruction and disappearance of the middle class from the Roman world: at the arrival of the Barbarians, this class no longer existed; and for this reason also, the nation had ceased to exist. This annihilation of the middle class in the Roman empire was especially the result of a municipal system, which had rendered it completely the instrument and the victim of the imperial despotism. All the batteries of that despotism were directed against this class; and it was imprisoned within the municipal system that it might be turned to account, and made to supply the necessities of the existence of the power that crushed it.

Such a fact renders it worth while to study, in all its parts, the machine by which it was produced. Those who are unacquainted with the organization of the municipal system at this period, and its effects upon Roman society, cannot properly understand the history of these times.

In the constitution and existence of cities, within the Roman world, we may discern three epochs, very distinct from each other, and clearly marked out by actual revolutions. It is well known that the Romans, adopting, in their conquests, a system widely different from that of most ancient nations, were careful not to exterminate or reduce to servitude the nations which they had conquered. This difference of procedure was, I think, occasioned by the condition of most of the neighbouring nations, against which Rome first waged war. They were collected together in towns, and not dispersed throughout the country; they formed civic bodies, cultivating and governing a territory of greater or less extent. These cities were numerous and independent. A nation scattered over the land which it cultivates, may easily be destroyed or enslaved; but the task is more difficult and less profitable when that nation dwells within walls and has already assumed the consistency of a petty State. Moreover, the nations which, in ancient times, were enslaved or exterminated, received this treatment almost invariably from conquerors who were in search of a home, and who had settled in the territory they had won. When the war was ended, the Romans returned to Rome. Enslavement and extermination cannot be effected either all at once or from a distance. The victors who intend to do this must be ever present among the vanquished, ceaselessly depriving them of their wealth, their liberty, and their lands. The primitive condition of the Romans, at the commencement of their conquests, exercised a decisive influence upon the fate of nations.

Treatment Of Conquered Towns.

Originally, it does not appear that the Romans ventured to leave their former inhabitants in the conquered towns. It is said that violence supplied Rome with women; the same proceeding furnished her with new citizens. The vanquished, when transferred to Rome, became Romans like their victors. The conquered town was occupied, either by soldiers, or by inhabitants of Rome, belonging to the lowest class of the people, and sent thither to form a kind of colony. The town of Cœre was the first which, on being united to Rome, was allowed to retain its own laws and magistrates after receiving, at least in part, the right of Roman citizenship. According to Livy, in the year of Rome 365, a decree of the Senate ordained ut cum Cœretibus publice hospitium fieret.

Admission To Citizenship.

This system prevailed and received continual development. The conquered towns were united to Rome by receiving the right of citizenship. Some of them, like Cœre, only received the title of Roman citizens for their inhabitants, and still retained their own Senate and laws; others were admitted into the Roman city, but without obtaining the right of suffrage in the comitia of Rome. With regard to others, again, their political incorporation was complete; their inhabitants enjoyed the right of suffrage at Rome like the Romans themselves. These last alone had a tribe in Rome.

The right of suffrage was granted successively to several towns which had not received it at first. Finally, all Italy after the war of the allies, and ere long a portion of Southern Gaul received the right of Roman citizenship in all its plenitude.

The towns thus admitted to all the rights of Roman citizenship were called municipia. When the whole of Italy was invested with these rights, those towns which had not at first fully possessed them retained for a considerable period the names of coloniæ, prefectures, and so forth, which they had originally borne; but, in fact, their condition was completely assimilated to that of the ancient municipia.

Out of Italy, the condition of the conquered towns and districts was still very various. History tells us of coloniæ, some of which were Roman, and others Latin, of populi liberi, civitates fæderatæ, reges amici, provinciæ. These different denominations indicated different modes of existence under the domination of Rome, and different degrees of dependence —but these differences successively disappeared. I am referring merely to the municipia.

Before conferring on a town the full rights of Roman citizenship, inquiry was made whether it would accept them or not. On consent being given, and, to use the legal phrase, ubi fundus ei legi factus erat, the concession took place. Its principal consequences were these: municipal rights, interests and offices, in that town, were then separated from political rights, interest and offices. The former remained in possession of the town, and were exercised on the spot by the inhabitants, with entire independence: the latter were transferred to Rome, and could be exercised only within its walls. Thus, the right of making peace or war, of passing laws, levying taxes, and administering justice, ceased to belong to the municipium individually; but the citizens shared these rights, and exercised them at Rome in common with the citizens who inhabited Rome; they repaired thither to vote at the comitia, both upon the laws and upon appointments to magisterial functions: they sought and might obtain all the offices of the State. The city of Rome possessed the privilege that these political rights could be exercised only within its walls. Its inhabitants possessed no privilege above those of the municipia.

The rights, interests, and offices, which we now call municipal, and the entire disposal of which was secured to each locality, are nowhere regularly distinguished and enumerated. At this degree of civilization, neither the rulers nor the ruled feel the necessity of foreseeing, defining, and regulating everything; they trust to the good sense of mankind, and to the nature of things. History, however, indicates the principal prerogatives which continued local.

1. Worship, religious festivals, and ceremonies. Not only did each town retain its ancient usages and independent authority in this respect, but the Roman laws watched over the preservation of these rights, and even made it a duty. Each municipium, therefore, had its own priests and flamens, as well as the right of choosing them, and of regulating all matters in relation thereto. 2. Every municipium also possessed the administration of its own private property and revenues. In ceasing to be a political personage, it became a civil personage. Public edifices, whether devoted to purposes of utility or of pleasure, festivals, local and general amusements, all expenses of this kind, and all the revenues by which they were defrayed, continued to be absolutely local matters. The inhabitants appointed the magistrates who were charged with these functions. 3. The police also remained, to a certain extent at least, in the hands of the local magistrates; they had to watch over the internal security of their town, and provisionally to arrest those who disturbed its peace. 4. Although the judicial power had been withdrawn from the localities, we nevertheless meet with some traces of a Jurisdiction somewhat similar to that which we call municipal police, giving judgment upon offences against the laws, with regard to public health, weights and measures, markets, and so forth.

Municipal Officers.

All these local affairs were managed either by magistrates appointed by the inhabitants, or by the curia of the town or college of decurions, that is, of all the inhabitants who possessed a fixed landed income. In general, the curia appointed the magistrates; we meet with some instances, however, of their being appointed by the general body of the inhabitants. But at this period, and by a necessary consequence of the existence of slavery, there were few free men who did not belong to the curia.

The origin of the word decurio is uncertain. Some writers are of opinion that he was an officer placed at the head of ten families, like the tything-man, or tunginus of the German peoples. Others think that decurio simply means member of a curia. The last interpretation seems to me the more probable of the two. At a later period, the decurions were called curiales.

Constitution Of The Municipia.

Such was the constitution of the municipia at the end of the Roman republic. It presents, as results, the following general facts:

1. All political rights and interests, all political life, in short, was centralized at Rome, not merely morally and by law, but materially and in fact. Within the walls of Rome alone could be consummated all the acts of a Roman citizen. 2. No centralization of this kind had taken place in reference to what we now call administrative interests. Each town had remained isolated and distinct in this respect, regulating its own affairs, just as a private individual would do. 3. The appointment and surveillance of the magistrates who administered the local affairs of the town took place on the spot, without any intervention of the central power, and by the assembly of the principal inhabitants. 4. Into this assembly were admitted all the inhabitants who possessed a certain income. There is reason to believe that a few free men only were excluded therefrom.

Here begins a second epoch in the history of the Roman municipal system.

The absolute separation of political from local existence, and the impossibility of exercising political rights elsewhere than in Rome, could not fail to deprive the towns of their principal citizens, and also of a great part of their importance. Thus, during the epoch which we have just surveyed, purely local interests occupied only a small place. Rome absorbed everything. The independence left to other towns, as regarded matters that were not treated of at Rome, or did not emanate from Rome, arose from the slight importance of those matters.

When liberty began to totter at Rome, the decadence of the political activity of the citizens necessarily diminished its concentration. The chief men of the municipia repaired to Rome to take their part in the government of the world, either by voting in the comitia, or discharging great public functions. When the comitia and the high magistracies ceased to have any perceptible influence in the government, when political life became extinct in Rome, together with the movement of liberty, this affluence of all the important men towards Rome decreased. Such a decrease was advantageous to the rising despotism, and met with no opposition.

Progress Of Public Indifference.

Here, as in every instance, the necessary consequences of general facts are revealed in particular and positive facts, up to that time, no political act could be performed, and no suffrage be exercised, elsewhere than within the walls of Rome. Suetonius informs us that Augustus conferred upon the citizens of a large number of Italian municipia the right of giving their votes without leaving their town, and sending them to Rome in a sealed packet, that they might be properly scrutinized in the comitia. Thus was exhibited, at once, the progress of public indifference, and the growth of absolute power.

This progress continued rapidly. Ere long, the comitia met with the fate of all shams, and were abolished; all free intervention of the citizens in the government disappeared, and no political acts remained to be performed, either at Rome, or at a distance therefrom; and as it is always a trick of nascent despotism to offer to all men the deceptive advantages of a shameful equality, the right of Roman citizenship was, almost at the same period, bestowed indiscriminately upon the whole Roman world. This right no longer possessed any political significance, nor did it confer any real importance upon those who received it; and yet this concession deprived those whom it levelled to the condition of the multitude, of any importance they might still have retained. There is reason to believe that this measure was rather the consequence of a financial speculation than of a clever despotic combination. But despotism, even when its conduct is least guided by scientific principles, is never deceived by its instincts. Such was, moreover, the natural course of things; and degraded peoples must inevitably suffer their fate. All the blame must not be laid on the master of the flock; and the hatred which tyranny merits cannot save from our contempt nations that are incapable of liberty.

However, as the degradation and ruin of an empire cannot be effected in a moment, or by a single blow; as there still existed in the Roman world some habits of liberty which despotism had not had time or need to destroy, it was necessary to make some sort of compensation for this complete disappearance of political rights and life; and this compensation naturally resulted from the change which had occurred.

Growing Importance Of The Municipia.

A portion of the importance which Rome had lost, had returned to the municipia. A large number of wealthy citizens no longer left their homes. Having been excluded from the government of the State, their attention spontaneously turned to the affairs of their own city. Nothing had yet stimulated the central power to interfere in their administration. The treasures of Rome, and the ordinary contributions of the provinces, were sufficient for the imperial wants, and even for its follies. Tyranny then felt but slightly the necessity of penetrating into every quarter, and of possessing a detailed organization; and did not even know how to set about it. The municipal system, therefore, retained considerable importance; it even constituted itself with greater regularity, and according to more positive, perhaps more extensive rights, than those which it had previously possessed.

It is during the period from the reign of Nerva to that of Diocletian, that the state of the municipia appears under this new aspect. A great many laws were passed to increase and secure the property and revenues of towns. Trajan permitted them to receive inheritances by way of fidei commissus; and, ere long, they were authorized to receive them directly. Hadrian granted them the right of receiving legacies, and ordained that any administrator who should misappropriate the property of a town should be considered guilty, not of simple theft, but of embezzlement. The ordinary income usually sufficed to meet the expenditure, and it was not necessary to lay fresh taxes upon the citizens. The State did not cast upon the cities any burdens which did not directly concern them; and there were but very few citizens exempt from that which was onerous in municipal duties. The common people bore their part, by hard labour, in the public works which interested each town: the dignity of the decurions was recognised and sanctioned. Hadrian freed them from the punishment of death, except in cases of parricide. The decurionate was still sought after as an honour; and lastly, the best proof of the importance and extension of the municipal system, during this period, will be found in the number of laws passed in relation to it, and the particular attention paid to it by jurisconsults. Evidently, in the absence of political rights and guarantees, the municipal system was the depository in which all the rights and securities of citizens were contained.

Dangers Of Roman Despotism.

But the attempt to preserve this system could not long succeed. We must, indeed, date revolutions from the day on which they break out; this is the only precise epoch which we can assign to them, but it is not that in which they originate. The convulsions which we call revolutions, are far less symptomatic of what is commencing than declaratory of what has passed away. The crisis of the municipal system under Constantine is one of many proofs of this truth.

Ever since the reign of Septimius Severus, the central power in the Roman empire had been falling into ruin; its strength decreased in proportion as its burdens and dangers augmented. It became indispensable to cast upon others the burdens which it could no longer bear, and to seek new strength in order to confront new dangers. At the same time, there arose, in the midst of the old Roman society, a society both young and ardent, united in a firm and fruitful faith, gifted from within with principles admirably adapted to fortify its internal constitution, and also with an immense power of external expansion; I refer to Christian society. It was by the action of these two causes, at first divided and afterwards united, that the municipal system of the Roman empire was dissolved, and ended by deteriorating into a principle of ruin, and an instrument of oppression.

It is one of the thousand vices of despotism that its exigencies increase in proportion as its means diminish; the weaker it becomes, the greater is its need of exaggeration; the more it is impoverished, the more it desires to spend. In point of strength, as of wealth, sterility and prodigality are equally imposed upon it; society, both men and things, in its hands, is but a lifeless and limited material which it expends for its own support, and into which it is compelled to penetrate more deeply as it becomes more exhausted, and as it is itself more nearly losing all.

The despotism of the Roman emperors existed in presence of three dangers: the Barbarians, who were continually advancing, and whom it was necessary to conquer or to bribe; the populace, which was continually increasing, and which it was necessary to feed, amuse, and restrain; the soldiers, the force to be opposed to this twofold peril,—a force all the more dangerous in itself, as it was necessary to increase it, and grant it daily fresh concessions.

Burdens Of The Municipia.

This position imposed immense burdens on despotism. In order to obtain resources, it was compelled to create an administrative machine capable of carrying its action into every quarter, and which became itself a new burden. This system of government, which commenced under Diocletian and ended under Honorius, had no other object but to extend over society a network of functionaries, who were incessantly occupied in extracting from it wealth and strength, which they afterwards deposited in the hands of the emperors.

The revenues of the towns, like those of private individuals, were laid under contribution by the exigencies of power, and were speedily invaded in a still more direct manner. On various occasions, amongst others under Constantine, the emperor took possession of a large number of municipal properties; but the local charges which these properties were intended to meet were, nevertheless, left undiminished. Nay, more, they were increased; as the populace everywhere became more numerous and more disposed to sedition, it became more expensive to feed and amuse them, and greater force was required to keep them in check. The central power, itself overburdened, cast a portion of its load upon the towns. Now, whenever the regular revenues of a town did not suffice to meet its expenditure, the curia, that is, the body of wealthy citizens, the decurions, were bound to supply the deficiency from their own private purse. They were, moreover, in almost every place, the collectors of the public taxes, and were responsible for this collection; their private property had to make up for the insolvency of the tax-payers, as well as to supply the deficiency of the communal revenues. The dignity of decurion thus became a cause of ruin; this condition was the most onerous of all social conditions; it was, nevertheless, that of all the well-to-do inhabitants of all the municipia in the empire.

Nor was this all; as soon as the position of the decurions became burdensome, there was a tendency to leave it, as well as an advantage in doing so. Exemption from curial functions became a privilege; and this privilege received an ever-increasing extension. The emperors, who disposed of all public dignities and employments, conferred them upon the men and the classes whom they felt it necessary to gain. Thus arose within the State, as a necessary result of despotism, an immense class of privileged persons. In proportion as the revenues of the towns diminished, their burdens augmented, and fell upon the decurions, now fewer in number in consequence of the concession of privilege. It was, however, needful to leave enough to bear the burdens imposed on the curiæ. Hence the origin of that long series of laws which make of each curia a prison-house in which the decurions were hereditarily confined; which deprived them, in a multitude of cases, of the free disposal of their property, or even disposed of it without their consent for the benefit of the curia; which pursued them into the country, into the army, wherever they attempted to take refuge, in order to restore them to the curiæ, from whence they desired to escape: laws, in fine, which bound an immense class of citizens, in property as well as in person, to the most onerous and ungrateful of public services, just as you would compel animals to perform this or that species of domestic labour.

Growth Of Christianity.

Such was the place which despotism finally assigned to the municipal system; such was the condition to which municipal proprietors were reduced by the laws. And whilst despotism was straining every nerve to tighten the bonds of the municipal system, and to compel the inhabitants to perform, as charges, functions which had formerly been considered as rights, the second cause to which I have alluded, Christianity, was labouring to dissolve or dismantle municipal society, in order to substitute another in its place.

During nearly three centuries, Christian society had been silently forming in the midst, and, so to speak, beneath the surface of the civil society of the Romans. It was at a very early period a regularly-constituted society, with its chiefs, its laws, its expenditure, and its income. Its organization, originally entirely free and founded upon purely moral ties, was by no means deficient in strength. It was at that time the only association which could procure for its members the joys of the inner life—which possessed, in the ideas and sentiments that formed its basis, matter to occupy lofty minds, to exercise active imaginations, and to satisfy the requirements of that moral and intellectual existence which neither oppression nor misfortune can completely extinguish throughout a nation.

Effects Of Christianity.

The inhabitant of a municipium, when he became a Christian, ceased to belong to his town, and entered into the Christian society, of which the bishop was chief. There alone, henceforward, was the centre of his thoughts and affections, and the abode of his masters and brethren. To the necessities of this new association were devoted, if needful, his fortune and his activity; thither, in fine, his entire moral existence was in some measure transported.

When such a displacement has occurred in the moral order of things, it speedily becomes consummated in the material order also. The conversion of Constantine, in fact, declared the triumph of Christian society, and accelerated its progress. Thenceforward, power, jurisdiction, and wealth poured in upon the churches and bishops, as upon the only centres around which men were spontaneously disposed to group themselves, and which could exercise the virtue of attraction upon all the forces of society. It was no longer to his town, but to his church that the citizen desired to bequeath his property. It was no longer by the construction of circuses and aqueducts, but by the erection of Christian temples, that the rich man endeavoured to rest his claim to public affection. The parish took the place of the municipium; the central power itself, hurried on by the course of the events with which it had become associated, used all its efforts to swell the stream. The emperors deprived the communes of a portion of their property, and gave it to the churches; they deprived the municipal magistrates of a portion of their authority, and gave it to the bishops. When the victory had been thus avowed, interest combined with faith to increase the society of the conquerors. The clergy were exempted from the burden of municipal functions; and it became necessary to pass laws to prevent all the decurions from making themselves clerks. Without these laws, municipal society would have been entirely dissolved; its existence was protracted that it might continue to bear the burden to which it was condemned; and, strange to say, the emperors most favourable to the ecclesiastical order, and most liberal in augmenting its advantages, were compelled at the same time to struggle against the tendency which induced men to leave every other association, in order to enter into the only one in which they could find honour and protection.

Decay Of The Municipia.

Such then, was, in truth, the state of things. Despotism, urged by its own necessities, incessantly aggravated the condition of the curia. That of the church flourished and improved as incessantly, either by the aid of the peoples, or by the action of despotism itself, which had need of the support of the clergy. It was therefore necessary continually to relegate to the curia the decurions who were ever anxious to leave it. In proportion as their number decreased, and as those who remained became ruined and unable to bear the burden, their condition became less and less endurable. Thus, evil sprang from evil; oppression rendered ruin certain by its efforts to delay it; and the municipal system which, as I have said, had become an actual gaol to one class of citizens, daily hastened onwards to its own destruction, and to that of the class which was chained to its destiny.

Such was, with regard to the municipia, the course of events and laws from the reign of Constantine until the fall of the Western Empire. In vain did some emperors strive to raise the communes; in vain did Julian restore to them a portion of the property which they had previously lost. These changes in legislation were ineffectual; a fatal necessity weighed upon the municipia; and whenever the municipal system bordered closely upon dissolution, and it was felt necessary to support it, no other aid was given than by redoubling the energy of the causes which urged it to destruction. Thus violent is the course of decaying despotism. The municipalities were daily sacrificed in greater measure to the empire, and the decurions to the municipalities; the external forms of liberty still existed within the curiæ, as regarded the election of magistrates and the administration of the affairs of the city; but these forms were vain, for the citizens who were called upon to give them life by their actions, were stricken to death in their personal independence and in their fortune. It was in this state of material ruin and moral annihilation that the Barbarians, when they established themselves in the Roman territory, found the towns, their magistrates, and their inhabitants.

Abolition Of The Municipal System.

In the East, the agony of the municipia was prolonged with the duration of the empire. Here also some emperors made unsuccessful attempts to restore them to prosperity. At length, the progress of the central despotism became so great, and the forms of municipal liberty so evidently a dead letter, that, towards the end of the ninth century, the Emperor Leo, called the Philosopher, abolished the whole municipal system at once, by the following decree:—

"As, in things which serve for use in common life, we esteem those which are convenient and useful, and despise those which are of no utility, so we ought to act in reference to laws; those which are of some advantage, and which confer some benefit on the commonwealth, should be maintained and honoured; but as for those whose maintenance is troublesome and unimportant, not only should we pay no attention to them, but we should reject them from the body of the laws. Now, we say, that among the ancient laws passed in reference to curiæ and decuriones, there are some which impose intolerable burdens on the decurions, and confer on the curiæ the right of appointing certain magistrates, and of governing cities by their own authority. Now that civil affairs have assumed another form, and that all things depend solely upon the care and administration of the imperial majesty, these laws wander, in some sort, vainly and without object around the legal territory; we therefore abolish them by the present decree." [Footnote 15]

Such were, during the period of twelve centuries which elapsed between the treaty of Rome with Cœre and the reign of Leo the Philosopher, the great revolutions of the municipal system in the Roman world. We may characterize them by saying that, during the first period, the municipal system was a liberty granted, in fact, to the inhabitants of the towns; during the second, it was a right legally constituted, as an indemnity for the loss of political privileges; and, during the third, it was a burden imposed upon a certain class of citizens.

I now terminate its history. In our next lecture, we shall investigate the real state of the municipal system during the third period, and its influence upon the condition of the citizens.

Lecture XXIII.

Of the various social conditions in the Roman Empire, before the final invasion of the Barbarians. The privileged classes, and curials. Their obligations, functions, and immunities. Attributes of the curia as a body. Of the various municipal magistracies and offices. Of the Defender in cities. Comparison of the development of the municipal system, and its relations to the central organization of the State in the Roman Empire and in modern societies.

Social Conditions In The Roman Empire

At the commencement of the fifth century the subjects of the Empire were divided into three classes, forming three very distinct social conditions:

1. The privileged classes; 2. The curials; 3. The common people. I speak only of free men.

The privileged class included:

1. The members of the Senate, and all those who were entitled to bear the name of clarissimi; 2. The officers of the palace; 3. The clergy; 4. The cohortal militia, a sort of gendarmerie employed in the maintenance of the internal order of the State, and the execution of the laws; 5. The soldiers in general, whether included in the legions, or in the troops attached to the palace, or in the corps of barbarian auxiliaries.

The class of curials comprehended all the citizens inhabiting towns, whether natives or settlers therein, who possessed a certain landed income, and did not belong, by any title, to the privileged class. The common people were the mass of the inhabitants of the towns, whose almost absolute want of property excluded them from a place among the curials.

The privileged members of the first class were numerous, of various rank, and unequally distributed among the five orders of which it was composed; but that which was, in fact, the most important and most sought after of their privileges, that which alone was more valuable than all the rest, was common to the five orders which constituted this class—I mean, exemption from municipal functions and offices.

When we come to treat of the curials, you will learn what was the extent of these duties; but you must first understand clearly who were exempt from them.

1. The whole army, from the lowest cohortalis to the magister equitum peditumve; 2. The entire body of the clergy, from the simple clerk to the archbishop; 3. It is an easy matter to define the two foregoing classes; but it is not so clear who were the members of the class of senators and clarissimi.

The number of the senators was unlimited; the emperor appointed and dismissed them at his will, and could even raise the sons of freedmen to this rank. All those who had filled the principal magisterial offices in the Empire, or who had merely received from the prince the honorary title belonging to those magistratures, were called clarissimi, and had the right, when occasion required, of sitting in the Senate. Thus the class of clarissimi included all the functionaries of any importance: and they were all appointed and might be dismissed by the emperor.

The Privileged Class.

The body of privileged individuals, then, was composed:

1. Of the army; 2. Of the clergy; 3. Of all the public functionaries, whether employed at the Court and in the palace, or in the provinces.

Thus despotism and privilege had made a close alliance; and, in this alliance, privilege, which depended almost absolutely on despotism, possessed neither liberty nor dignity, except perhaps in the body of the clergy.

This privilege, and especially exemption from curial functions, was not purely personal, but also hereditary. It was so, in the case of military men, on condition that the children also should embrace the profession of arms; and in the case of civilians, it was continued to those children who were born since their fathers had belonged to the class of clarissimi, or had occupied posts in the palace. Among the classes exempt from curial functions was the cohortal militia, a subaltern service to which those who entered it were hereditarily bound, and from which there was no means of passing into a superior class.

The class of curials comprehended all the inhabitants of the towns, whether natives thereof, municipes, or settlers therein, incolæ, who possessed a landed property of more than twenty-five acres, jugera, and did not belong to any privileged class. Members of the curial class became so either by origin, or by appointment. Every child of a curial was a curial also, and liable to all the charges attached to that quality. Every inhabitant who, by trade or otherwise, acquired a landed property of more than twenty-five acres, might be summoned to enter the curia, and could not refuse to do so. No curial could, by a voluntary act, pass into another condition. They were interdicted from dwelling in the country, entering the army, or engaging in employments which would have liberated them from municipal functions, until they had passed through every curial gradation, from that of a simple member of a curia to the highest civic magistracies. Then alone they might become military men, public functionaries, and senators. The children born to them before their elevation remained curials. They were not allowed to enter the clergy except by granting the enjoyment of their property to any one who agreed to be a curial in their place, or by making a present of their possessions to the curia itself. As the curials were incessantly striving to escape from their bondage, a multitude of laws were passed directing the prosecution of those who had escaped from their original condition, and succeeded in effecting their entrance furtively into the army, the clergy, public offices, or the Senate; and ordaining their restoration to the curia from which they had fled.

Functions And Charges Of The Curials.

The following were the functions and charges of the curials thus confined, voluntarily or perforce, in the curia.

1. The administration of the affairs of the municipium, with its expenditure and revenues, either by deliberating thereon in the curia, or by discharging the magisterial offices of the town. In this double position, the curials were responsible not only for their individual management, but also for the necessities of the town, for which they were bound to provide out of their own resources, in case the municipal revenues were insufficient. 2. The collection of the public taxes, also under the responsibility of their private property in case of defaulters. Lands which were subject to the land-tax and had been abandoned by their possessors, were allotted to the curia, which was bound to pay the tax thereon until it had found some one willing to take them off its hands. If it could find no one, the tax on the abandoned land was divided amongst the other estates.

3. No curial could sell the property from which he derived his qualification, without the permission of the governor of the province. 4. The heirs of curials, when not members of the curia, and the widows or daughters of curials, who married men belonging to other classes, were bound to give a fourth part of their goods to the curia. 5. The curials who had no children could not dispose, by will, of more than a fourth of their property: the other three-fourths went, by right, to the curia. 6. They were not allowed to absent themselves from their municipium, even for a limited time, without permission from the judge of the province. 7. When they had withdrawn from their curia, and could not be brought back, their property was confiscated to the benefit of their curia. 8. The tax known by the name of aurum coronarium, and which consisted in a sum to be paid to the prince, on the occasion of certain events, was levied on the curials alone.

Advantages Granted To The Curials.

The only advantages granted to the curials in compensation for these burdens were:

1. Exemption from torture, except in very serious cases. 2. Exemption from certain afflictive and dishonouring punishments which were reserved for the populace; such as being condemned to work in the mines, to be burned alive, and so forth. 3. Decurions who had fallen into indigence were supported at the expense of the municipium.

These were the only advantages possessed by the curials over the common people, who, on the other hand, enjoyed the benefit that every career was open to them, and that, by entering the army, or engaging in public employments, they might raise themselves at once into the privileged class.

The condition of the curials, then, both as citizens and in relation to the State, was onerous and devoid of liberty. Municipal administration was a burdensome service, to which the curials were doomed, and not a right with which they were invested. Let us now see what was the condition of the curials, not in relation to the State, and to the other classes of citizens, but in the curia and amongst themselves. Here still existed the forms, and even the principles, of liberty. All the curials were members of the curia, and sat therein. The ability to bear the burdens of the office entailed that of exercising its rights, and taking part in its affairs; the names of all the curials of each municipium were inscribed, in an order which was determined according to their dignity, age, and other circumstances, in a book called the album curiæ. When there was occasion to deliberate upon any matter, they were all convoked together by the superior magistrate of the town, the duumvir, ædilis or prætor, and they all gave their opinions and their votes; everything was decided by the majority of votes: and no deliberation of the curia was valid unless two-thirds of the curials were present.

Attributes Of The Curia.

The attributes of the curia as a body were:

1. The examination and decision of certain affairs; 2. The appointment of magistrates and municipal officers.

Nowhere can I find an enumeration of the affairs which fell under the cognizance of the curia as a body. Everything, however, indicates that most of those municipal interests which required more than the simple execution of the laws or of orders already given, were discussed in the curia. The proper and independent authority of the municipal magistrates appears to have been very limited. For example, there is reason to believe that no expense could be incurred without the authorization of the curia. It fixed the time and place for holding fairs; it alone granted recompenses; and so forth.

There were even occasions on which the authorization of the curia was not sufficient, and when it was necessary to have the sanction of all the inhabitants, whether curials or not; for example, for the sale of any property belonging to the commune, or for the despatch of deputies to wait on the emperor in reference to any grievance or request. On the other hand, it is evident that, by the general progress of despotism, the imperial power continued daily to interfere more and more in the affairs of the municipia, and to limit the independence of the curiæ. Thus they might not erect new buildings without the permission of the governor of the province; the reparation of the walls around the towns was subject to the same formality; and it was also necessary for the emancipation of slaves, and for all acts which tended to diminish the patrimony of the city. By degrees, also, even those affairs the final decision of which had previously belonged to the curiæ fell, by way of objection or appeal, under the authority of the emperor and his delegates in the provinces. This occurred in consequence of the absolute concentration of judicial and fiscal power in the hands of the imperial functionaries. The curia and the curials were then reduced to be nothing more than the lowest agents of the sovereign authority. There was left to them hardly anything beyond the right of consultation and the right of complaint.

Municipal Offices.

With regard to the appointment to municipal magistracies, it remained for a long time, in reality, in the hands of the curia, without any necessity for its confirmation by the governor of the province, except in exceptional cases of towns which it was specially intended to ill-use or punish. But even this right soon became illusory by reason of the power given to provincial governors to annul the appointment on the demand of the person elected, When municipal functions had become merely burdensome, all the curials elected to discharge these offices, who had any influence with the governor, were able, under some pretext or another, to get their election annulled, and thus to escape from the load.

There were two kinds of municipal offices: the first, called magistratus, which conferred certain honours and a certain jurisdiction; the second, called munera, simple employments without jurisdiction and without any particular dignity. The curia appointed to both kind of offices; only the magistrates proposed the men whom they thought competent to fulfil the munera; but even these were not really appointed until they had obtained the suffrages of the curia.

The magistratus were:

1. Duumvir; this was the most usual name of the chief municipal magistrate. He was also called, in certain localities, quatuorvir, dictator, ædilis, prætor. His tenure of office was for a year; it corresponded pretty nearly with that of our mayors; the duumvir presided over the curia, and directed the general administration of the affairs of the city. He had a jurisdiction confined to matters of small importance; he also exercised a police authority which gave him the right of inflicting certain punishments upon slaves, and of provisionally arresting freemen. 2. Ædilis; this was a magistrate generally inferior to the duumvir; he had the inspection of public edifices, of the streets, of corn, and of weights and measures. These two magistrates, the duumvir and ædilis, were expected to give public festivals and games.

3. Curator reipublicæ; this officer, like the ædile, exercised a certain oversight over public edifices; but his principal business was the administration of the finances; he farmed out the lands of the municipium, received the accounts of the public works, lent and borrowed money in the name of the city, and so forth.

The munera were:

1. Susceptor, the collector of taxes, under the responsibility of the curials who appointed him. 2. Irenarchæ, commissaries of police, whose duty it was to seek out and prosecute offences, in the first instance. 3. Curatores, officers charged with various particular municipal services; curator frumenti, curator calendarii, the lender out on good sureties of the money of the city, at his own risk and peril. 4. Scribæ, subaltern clerks in the two offices. To this class belonged the tabelliones, who performed almost the same functions as our notaries.

The Defenders Of Cities.

In later times, when the decay of the municipal system became evident, when the ruin of the curials and the impotence of all the municipal magistrates to protect the inhabitants of the cities against the vexations of the imperial administration, became evident to despotism itself; and when despotism, suffering at length the punishment of its own deeds, felt society abandoning it on every side, it attempted, by the creation of a new magistracy, to procure for the municipia some security and some independence. A defensor was given to every city; his primitive mission was to defend the people, especially the poor, against the oppression and injustice of the imperial officers and their agents. He soon surpassed all the other municipal magistrates in importance and influence. Justinian gave the defenders the right to exercise, in reference to each city, the functions of the governor of the province during the absence of that officer; he also granted them jurisdiction in all cases which did not involve a larger sum than 300 aurei. They had even a certain amount of authority in criminal matters, and two apparitors were attached to their person; and in order to give some guarantees of their power and independence, two means were employed; on the one hand, they had the right of passing over the various degrees in the public administration, and of carrying their complaints at once before the prætorian prefect; this was done with the intention of elevating their dignity by freeing them from the jurisdiction of the provincial authorities. On the other hand, they were elected, not by the curia merely, but by the general body of the inhabitants of the municipium, including the bishop and all the clergy; and as the clergy then alone possessed any energy and influence, this new institution, and consequently all that still remained of the municipal system, fell into its hands almost universally. This was insufficient to restore the vigour of the municipia, under the dominion of the empire; but it was enough to procure for the clergy great legal influence in the towns after the settlement of the Barbarians. The most important result of the institution of defenders was to place the bishops at the head of the municipal system, which otherwise would have dissolved of itself, through the ruin of its citizens and the nullity of its institutions.

Destruction Of The Middle Class.

Such are the facts: they demonstrate the phenomenon which I indicated at the outset, namely, the destruction of the middle class in the empire; it was destroyed materially by the ruin and dispersion of the curials, and morally by the denial of all influence to the respectable population in the affairs of the State, and eventually in those of the city. Hence it arose that, in the fifth century, there was so much uncultivated land and so many towns almost deserted, or inhabited only by a famished and spiritless population. The system which I have just explained contributed, much more powerfully than the devastations of the Barbarians, to produce this result.

In order rightly to apprehend the true character and consequences of these facts, we must reduce them to general ideas, and deduce therefrom all that they contain in regard to one of the greatest problems of social order. Let us first examine them on the relations of the municipal system with political order, of the city with the State. In this respect, the general fact which results from those which I have stated, is the absolute separation of political rights and interests from municipal rights and interests; a separation equally fatal to the political rights and interests, and to the municipal rights and interests of citizens. So long as the principal citizens possessed, at the centre of the State, real rights and an actual influence, the municipal system was not wanting in guarantees of security, and continued to develop itself. As soon as the principal citizens lost their influence at head quarters, these guarantees disappeared, and the decay of the municipal system was not long in manifesting itself.

The Roman Empire And Modern States.

Let us now compare the course of things in the Roman world, with what has occurred in the modern states. In the Roman world, centralization was prompt and uninterrupted. In proportion as she conquered the world, Rome absorbed and retained within her walls the entire political existence of both victors and vanquished. There was nothing in common between the rights and liberties of the citizen, and the rights and liberties of the inhabitant; political life and municipal life were not confounded one in the other, and were not exhibited in the same localities. In regard to politics, the Roman people had, in truth, only one head; when that was stricken, political life ceased to exist; local liberties then found themselves unconnected by any bond, and without any common guarantee for their general protection.

Among modern nations, no such centralization has ever existed. On the contrary, it has been in the towns, and by the operation of municipal liberties, that the mass of the inhabitants, the middle class, has been formed, and has acquired importance in the State. But when once in possession of this point of support, this class soon felt itself to be in straits, and without security. The force of circumstances made it understand that, so long as it was not raised to the centre of the State, and constitutionally established there; so long as it did not possess, in political matters, rights which should prove the development and pledge of those which it exercised in municipal affairs—these last would be insufficient to protect it in all its interests, and even to protect themselves. Here is the origin of all the efforts which, from the thirteenth century onwards, either by States General or Parliaments, or by more indirect means, were made for the purpose of raising the burghers to political life, and associating with the rights and liberties of the inhabitant, the rights and liberties of the citizen. After three centuries of endeavour, these efforts were unsuccessful. The municipal system was unable to give birth to a political system which should correspond with it and become its guarantee. The centralization of power was effected without any centralization of rights. Thenceforward the municipal system proved weak and incapable of defending itself; it had been formed in spite of feudal domination; it was unable to exist in presence of a central authority, and in the midst of administrative monarchy. The towns gradually lost, obscurely and almost unresistingly, their ancient liberties. No one is ignorant that, at the moment when the French revolution broke out, the municipal system in France was nothing more than a vain shadow, without consistency or energy.

Results of the Comparison.

Thus although, in the Roman world and amongst ourselves, matters have progressed in inverse proportion, although Rome began by the centralization of public liberties, and modern States by municipal freedom, in both cases facts alike reveal to us the double truth that the two orders of liberties and rights are indispensable to one another, that they cannot be separated without mutual injury, and that the ruin of one necessarily entails the ruin of that which at first survives.

A second result of no less importance is revealed to us by the same facts. The separation of the municipal from the political system led, in the Roman empire, to the legal classification of society and to the introduction of privilege. In modern States, an analogous classification and the presence of aristocratic privileges prevented the municipal system from raising itself to political influence, and from producing the rights of the citizen from the local rights of the inhabitant. Where, then, municipal and political life are strangers to one another, where they are not united in the same system and bound together in such a manner as reciprocally to guarantee each other's security, we may be certain that society either is or soon will be divided into distinct and unchangeable classes, and that privilege either already exists or is about to make its appearance. If the burgesses have no share in the central power, if the citizens who exercise or share in the central power do not at the same time participate in the rights and interest of the burgesses, if political and municipal existence proceed thus collaterally, instead of being, as it were, included in each other, it is impossible for privilege not to gain a footing, even beneath the iron hand of despotism and in the midst of servitude.

Principles of Liberty.

If from all this we desire to deduce a still more general consequence, and to express it in a purely philosophical form, we shall acknowledge that, in order that right may certainly exist in any place, it must exist everywhere, that its presence at the centre is vain unless it be present also in localities; that, without political liberty, there can be no solid municipal liberties, and vice versâ. If, however, we consider the facts already stated in reference to the municipal system taken in itself and in its internal constitution; if in these facts we look for principles—we shall meet with the most singular amalgamation of the principles of liberty with those of despotism; an amalgamation, perhaps unexampled, and certainly inexplicable to those who have not well understood the course of circumstances, both in the formation and in the decline of the Roman world.

The presence of principles of liberty is evident. They were these.

1. Every inhabitant possessing a fortune which guaranteed his independence and intelligence, was a curial; and, as such, called upon to take part in the administration of the affairs of the city. Thus, the right was attached to presumed capacity, without any privilege of birth, or any limit as to number; and this right was not a simple right of election, but the right of full deliberation, of immediate participation in affairs, as far as they related to what occurred in the interior of a town, and to interests which might be understood and discussed by all those who were capable of raising themselves above the cares of individual existence. The curia was not a restricted and select council, it was an assembly of all the inhabitants who possessed the conditions of curial capacity. 2. An assembly cannot administrate—magistrates are necessary. These were all elected by the curia, for a very short time; and they answered for their administration by their private fortune. 3. In circumstances of importance, such as changing the condition of a city, or electing a magistrate invested with vague and more arbitrary authority, the curia itself was not sufficient; the whole body of the inhabitants was called in to take part in these solemn acts.

Who, on beholding such rights, would not think that he saw a small republic, in which municipal and political life were merged in one another, and in which the most democratic rule prevailed? Who would think that a municipality thus regulated formed a part of a great empire, and depended, by narrow and necessary bonds, on a remote and sovereign central power? Who would not, on the contrary, expect to meet with all the outbreaks of liberty, all the agitations and cabals, and frequently all the disorder and violence which, at all periods, characterize small societies thus shut up and governed within their own walls?

Principles Of Despotism.

Nothing of the kind was the case, and all these principles of liberty were lifeless. Other principles existed which struck them to death.

1. Such were the effects and exactions of the central despotism that the quality of curial ceased to be a right confessedly belonging to all who were capable of exercising it, and became a burden imposed upon all who were able to bear it. On the one hand, the government discharged itself from the care of providing for those public services which did not affect its own interests, and so cast the obligation on this class of citizens; and, on the other hand, it employed them to collect the taxes destined for its use, and made them responsible for the payment thereof. It ruined the curials in order to pay its own functionaries and soldiers; and it granted to its own functionaries and soldiers all the advantages of privilege, in order to obtain their assistance forcibly to prevent the curials from escaping from their impending ruin. Complete nullities as citizens, the curials lived only to be fleeced. 2. All the elective magistrates were, in fact, merely the gratuitous agents of despotism, for whose benefit they robbed their fellow-citizens, until they should be able, in some way or another, to free themselves from this unpleasant obligation. 3. Their election even was valueless, for the imperial delegate in the province could annul it, and they had the greatest personal interest in obtaining this favour from him; in this way also, they were at his mercy. 4. Lastly, their authority was not real, for it had no sanction. No effective jurisdiction was allowed them; they could do nothing that might not be annulled. Nay, more: as despotism daily perceived more clearly their impotence or ill-will, it daily encroached further upon the domain of their attributes, either by its own personal action, or by its direct delegates. The business of the curia vanished successively with its powers; and a day was not far distant when the municipal system would be abolished at a single stroke in the rapidly decaying empire, "because," the legislator would say, "all these laws wander, in some sort, vaguely and objectless about the legal territory."

General Conclusions.

Thus, the municipal power, having become completely estranged from political and civil power, ceased to be a power itself. Thus, the principles and forms of liberty, isolated remains of the independent existence of that multitude of towns which were successively added to the Roman empire, were impotent to defend themselves against the coalition of despotism and privilege. Thus, here also, we may learn what so many examples teach us; namely, that all the appearances of liberty, all the external acts which seem to attest its presence, may exist where liberty is not, and that it does not really exist unless those who possess it exercise a real power—a power, the exercise of which is connected with that of all powers. In the social state, liberty is participation in power; this participation is its true, or rather its only, guarantee. Where liberties are not rights, and where rights are not powers, neither rights nor liberties exist.

We must not, therefore, be surprised either at that complete disappearance of the nation which characterized the fall of the Roman empire, or at the influence which the clergy soon obtained in the new order of things. Both phenomena are explained by the state of society at that period, and particularly by that state of the municipal system which I have just described. The bishop had become, in every town, the natural chief of the inhabitants, the true mayor. His election, and the part which the citizens took in it, became the important business of the city. It is to the clergy that we owe the partial preservation, in the towns, of the Roman laws and customs, which were incorporated at a later period into the legislation of the State. Between the old municipal system of the Romans, and the civil-municipal system of the communes of the Middle Ages, the ecclesiastical municipal system occurred as a transition. This transition state lasted for several centuries. This important fact was nowhere so clearly and strongly developed as in the monarchy of the Visigoths in Spain.

Lecture XXIV.

Sketch of the history of Spain under the Visigoths. Condition of Spain under the Roman empire. Settlement of the Visigoths in the south-west of Gaul. Euric's collection of the laws of the Visigoths. Alaric's collection of the laws of the Roman subjects. Settlement of the Visigoths in Spain. Conflict between the Catholics and Arians. Political importance of the Councils of Toledo. Principal kings of the Visigoths. Egica collects the Forum judicum. Fall of the Visigothic monarchy in Spain.

Spain Under The Roman Empire.

Under the Roman empire, before the Barbarian invasions, Spain enjoyed considerable prosperity. The country was covered with roads, aqueducts, and public works of every description. The municipal government was almost independent; the principle of a landed census was applied to the formation of the curiæ; and various inscriptions prove that the mass of the people frequently took part with the Senate of the town, in the acts done in its name. There were conventus juridici, or sessions held by the presidents of the provinces and their assessors in fourteen towns of Spain; and conventus provinciales, or ordinary annual assemblies of the deputies of the towns, for the purpose of treating of the affairs of the province, and sending deputies to the emperor with their complaints and petitions.

All these institutions fell into decay at the end of the fourth century. The imperial despotism, by devolving all its exactions upon the municipal magistrates, had rendered these offices onerous to those who filled them, and odious to the people. On the other hand, since the emperor had made himself the centre of all, the provincial assemblies were useless except as intermediaries between the cities and the emperor; when the municipal organization had become enervated, and the emperor had almost entirely disappeared, these assemblies were found to be inconsistent and powerless in themselves. The sources whence they emanated, and the centre at which they terminated, were devoid of strength, and perished.

Barbarian Invasions Of Spain.

Such was the condition of Spain when, in 409, the Vandals, Alans, and Suevi crossed the Pyrenees. The Vandals remained in Galicia and Andalusia until 429, at which period they passed into Africa; the Alans, after having dwelt for a time in Lusitania and the province of Carthagena, emigrated into Africa with the Vandals. The Suevi founded a kingdom in Galicia, which existed as a distinct State until 585, when Leovigild, king of the Visigoths, reduced it under his sway. Finally Ataulphus, at the head of the Visigoths, entered Southern Gaul, acting sometimes as an ally, and sometimes as an enemy of the empire. He was assassinated at Barcelona, in the year 415.

I shall now pass in rapid review the principal events which mark the history of the Visigoths in Spain, subsequently to the death of Ataulphus.

1. Wallia, king of the Visigoths, from 415 to 419, made peace with the Emperor Honorius, on condition of making war against the other Barbarians in Spain. He was furnished with supplies, and authorized to establish himself in Aquitaine. He fixed his residence at Toulouse, and waged war against the Alans and Vandals. The Romans regained possession of a part of Spain; Wallia's Goths, mingled with the Alans, settled in the province of Tarragona. Catalonia (Cataulania, Goth-Alani) derives its name from this commingling of the two nations. The settlement of the Goths in Gaul lay between the Loire, the Ocean, and the Garonne, and comprehended the districts of Bordeaux, Agen, Perigueux, Saintes, Poitiers, and Toulouse. 2. Theodoric I. (419 451.) Under this monarch, the Visigoths extended their dominion in the south-east of Gaul. Their principal wars were with the Roman empire, which, after having made use of the Goths against the Vandals and Suevi, was now using the Huns against the Goths. In 425, occurred the siege of Arles by Theodoric; in 436, the siege of Narbonne. There was a disposition among the inhabitants of the country to range themselves under the dominion of the Goths, who were able to defend them against the other Barbarians, and to renounce their allegiance to Rome, which was bringing other Barbarians to subdue the Goths. About 449, the kingdom of the Visigoths extended as far as the Rhone. Theodoric made several expeditions into Spain; generally as the price of peace with the Romans. In 451, Theodoric was killed at a battle fought against Attila, either at Chalons-sur-Marne, or Mery-sur-Seine.

Visigothic Monarchy In Gaul.

3. Thorismund (451-453). A victory was gained over Attila, who had attacked the Alans settled on the Loire and in the neighbourhood of Orleans. It was evidently the Visigoths who drove the Huns out of Gaul. Thorismund was assassinated. 4. Theodoric II. (453-466). Avitus, Magister militiæ in the south of Roman Gaul, travelled to Toulouse to treat of peace with Theodoric, and was made emperor by the aid of the Visigoths. In concert with the Romans, Theodoric II. made an expedition into Spain against the Suevi. Rechiar, king of the Suevi, was defeated on the 5th of October, 450, near Astorga. This was rather an expedition than a conquest on the part of the Visigoths. Theodoric II., a curious portrait of whom has been left us by Sidonius Apollinarius, was assassinated in 462; he had acquired the district of Narbonne. 5. Euric (466-484). This reign was the culminating point of the Visigothic monarchy in Gaul. Euric led expeditions beyond the Loire against the Armoricans; in 474, he conquered Auvergne, which was then ceded to him by treaty; he had already conquered Arles and Marseilles, so that the monarchy of the Visigoths then extended from the Pyrenees to the Loire, and from the Ocean to the Alps, thus adjoining the monarchies of the Burgundians and Ostrogoths. Euric had also extended his dominions into Spain, where he possessed the Tarragonese district and Bœtica, which he had conquered from the Suevi. Euric had the laws and customs of the Goths written in a book. A passage of Sidonius Apollinarius which speaks of Theodoricianæ leges, has led to the belief that Theodoric commenced this collection; but Euric is also called Theodoric. 6. Alaric II. (484-507.) This reign was the epoch of the decay of the Visigothic monarchy in Gaul. Alaric, less warlike than his predecessors, gave himself up to the pursuit of pleasure. He was defeated by Clovis, at Vouillé near Poitiers, and left dead on the field. The Franks in the east, and the Burgundians in the west, dismembered the Visigothic monarchy, which thus became reduced to Languedoc, properly so called, and a few districts adjacent to the Pyrenees.

The Breviarium Aniani.

Alaric did for his Roman subjects what Euric had done for the Goths. He collected and revised the Roman laws, and formed them into a code called the Codex Alaricianus. This code was based upon the Codex Theodosianus published in 438 by Theodosius the Younger, and upon the Codex Gregorianus, the Codex Hermogenianus, the Pauli Sententiæ, and the Constitutiones Imperiales, published subsequently to the reign of Theodosius. This code was also called the Breviarium Aniani. It has been thought that Anianus, the referendary of Alaric, was its principal editor; but Père Sirmond has proved that Anianus only published it by order of the king, and sent authentic copies of it into the provinces. By an act of Alaric, the Roman legislation was, so to speak, revived, rearranged, and adapted to the monarchy of the Goths. It thenceforth emanated from the Gothic king himself. In the north of Gaul, whilst the Barbarian laws ceased to be customs and became written laws, the Roman laws lost their force as a whole, and became customs; in the south, on the other hand, they remained written laws, and retained much greater power, exercising an important influence upon the laws of the Barbarians. It would appear that this twofold written legislation must tend necessarily to maintain the separation of the two nations; but it contributed on the contrary to bring it to an end. 7. After the death of Alaric II., his legitimate son Amalaric, still a child, was taken into Spain. His natural son, Gesalic, became a king in Gaul. At this period, the monarchy of the Visigoths was transferred from Gaul into Spain. The Franks, Burgundians, and Ostrogoths, seized the Gallic possessions of the Visigoths. Gesalic was defeated, and Amalaric reigned under the protection of his grandfather Theodoric, and the tutelage of Theudes. 8. On the death of Amalaric, Theudes was elected king, and reigned from 531 to 548. He fixed the seat of the Visigothic monarchy in Spain. He waged long wars against the Franks, and, though an Arian, behaved with tolerance towards the Catholics. He authorized the bishops to meet annually in council at Toledo. Until the reign of Theudes, the principle of hereditary succession to the throne appears to have prevailed among the Visigoths; after Theudes, the principle of election prevailed in fact and in law.

9. From 548 to 567, reigned Theudegisil, Agila, Athanagild. There were continual wars between the Franks, the Suevi, and the Romans. To obtain the assistance of the Romans in his rebellion against Agila, Athanagild gave up to the Emperor Justinian several places between Valentia and Cadiz. Roman garrisons were accordingly sent into those towns. The Romans had also retained possession of other towns in Spain. Athanagild took up his residence at Toledo. He was the father of Queen Brunehault. At his death, the grandees remained five months without electing his successor. At length they elected Liuva, the governor of Narbonne, who associated his brother Leovigild with him on the throne. Leovigild governed Spain, and Liuva, Visigothic Gaul. Liuva died in 570, and Leovigild became sole king. With him commences, to speak truly, the complete and regular monarchy of the Visigoths in Spain.

Reign Of Leovigild.

10. Leovigild, from 570 to 586, consolidated and extended the monarchy. He gained great victories over the Greco-Romans who had recovered a part of Spain, and won from them Medina-Sidonia, Cordova, and other towns. He also defeated the Vascons [Footnote 16] who had maintained their independent occupation of the country on both sides of the Pyrenees. In 586, he completely subdued the Suevi; he greatly extended the royal power, made large confiscations of the property of the church and the nobles, persecuted the Catholics, and convoked a council of Arian bishops at Toledo, in 582, to endeavour to explain Arianism in such a manner as to satisfy the people, and to insure its general reception in his dominions. A civil war broke out between Leovigild and his son Hermenegild, who was a Catholic. After various vicissitudes, Hermenegild was taken, confined at Seville in a tower which bears his name, and put to death in 684. Before his insurrection, he was associated with his father in the crown, as was also his brother Recared, who governed the provinces in Gaul. Leovigild corrected and completed the laws of Euric.

Up to this period, there was no unity in the Visigothic monarchy. General institutions were wanting. The national assemblies were more irregular than in other countries. Neither the principle of hereditary succession, nor that of election, prevailed as regarded the kingly office. Out of fourteen kings, six had been assassinated. There was no coherence among the provinces of the kingdom. The clergy were deeply divided amongst themselves. The king gave a factitious preponderance to the Arian minority.

Reign Of Recared.

11. In 586, Recared I. succeeded Leovigild, declared himself a Catholic, and convoked the third general council of Toledo, in 587. A union was effected between the royal and ecclesiastical authority. Recared found himself in a position somewhat analogous to that of Constantine the Great, after his conversion to Christianity. He was energetically supported by the Catholic clergy, whom he, in his turn, as zealously maintained. At the third council of Toledo, the two powers made in common the laws of which they both had need. An important fact should be noticed in the tenure of this council. During the first three days the ecclesiastics sat alone, and regulated religious affairs exclusively. On the fourth day, laymen were admitted; and affairs both civil and religious were then treated of. Recared made war against the Franks of Gothic Gaul, and against the Romans in Spain. This last war was terminated by the intervention of Pope Gregory the Great, who negotiated a treaty between the Emperor Maurice and Recared, the latter of whom, since 590, had sent ambassadors to the Pope. The Arian clergy excited several rebellions against Recared. 12. In 601, Recared was succeeded by his son Liuva II., who was assassinated in 603. Withemar, his successor, was assassinated in 610. Gundemar was then elected, but he died in 612. Sisebut acceded to the throne in 613, and made war against the remnant of the Roman Empire in Spain. He reduced to a mere nullity the possessions which the emperor had until then retained. He imposed upon the Jews the necessity of being baptized. Heraclius had commenced this persecution in the Eastern Empire; and it entered as a condition into the treaty which he made with Sisebut. The Jews, when driven from Spain, took refuge in Gaul, where they were equally persecuted by Dagobert: so that they knew not whither to flee for refuge. The laws of Sisebut were issued in virtue of the king's authority alone, without the concurrence of the councils.

13. Recared, the second son of Sisebut, reigned for a few months. He was succeeded, in 621, by Suinthila, son of Recared I., who was elected king. Suinthila had served as a general under Sisebut. We frequently meet with similar cases in the history of the Visigoths; and they prove that the idea of hereditary succession was still not firmly established. Suinthila made a great expedition against the Basques. He drove them to the other side of the Pyrenees, and built a fortress which is believed to have been Fontarabia. He completely expelled the Romans from Spain, by sowing dissension between the two patricians who still governed the two Roman provinces, and by granting the Roman troops who remained in the country permission to return home.

Usurpation Of Sisenand.

14. In 631, occurred the usurpation of Sisenand by the aid of King Dagobert, who sent an army of Franks, which penetrated as far as Saragossa. Suinthila abdicated the throne. Sisenand succeeded him, and reigned from 631 to 636. In 634, Sisenand's usurpation was confirmed by the fourth council of Toledo. The crown was declared elective by the bishops and nobles, and ecclesiastical privileges received great extension. From 636 to 640, Chintila reigned. During his reign, the fifth and sixth councils of Toledo passed laws regarding the elections of kings and the condition of their families after their death, against the Jews, and on other subjects. Chintila was succeeded by his son Tulga, who was deposed in 642. 15. Chindasuinth reigned tyrannically from 642 to 652. Two hundred of the principal Goths were put to death, and their property confiscated; many of the inhabitants emigrated; Chindasuinth convoked the seventh council of Toledo, the canons of which against the emigrants were very rigorous. In all the measures of his government, we may discern the influence of the Catholic clergy, intimately connected with the king against the Arian faction. One canon ordained that every bishop residing near Toledo, should spend one month in every year at the court of the king. Chindasuinth revised and completed the collection of the laws relating to different classes of his subjects, and entirely abolished the special employment of the Roman law in his dominions. In 649, he associated his son Recesuinth with him in the crown, and obtained his recognition as his successor.

Recesuinth And Divine Right.

On opening the eighth council of Toledo, Recesuinth said; "The Creator raised me to the throne by associating me in the dignity of my father, and by his death the Almighty has transmitted to me the authority which I have inherited." These words are the expression of the theory of divine right. Recesuinth directed the council to revise and complete the collection of laws; imposed a fine of thirty pounds of gold on any one who should appeal to any other than the national law; permitted marriages between the Romans and Goths, which had been until then interdicted; revoked the laws of his father against the emigrants; and restored a portion of the confiscated property. A law was also passed, separating the private domain of the king from the public domain. The preponderance of the bishops in the council is evident. The canons are signed by seventy-three ecclesiastics, and by only sixteen counts, dukes, or proceres. Recesuinth died on the 1st September, 672. 16. Wamba, elected on the 19th September, 672, manifested great repugnance to accept the crown. He repressed the rebels in Gothic Gaul, and besieged Narbonne and Nismes. He also vigorously opposed the descents of the Saracens, who were beginning to infest the coasts of Spain, as the Normans were infesting those of Gaul. He fortified Toledo and many other towns. During his reign the division of the kingdom into dioceses took place; six archbishoprics and seventy bishoprics were established. Wamba made several laws for organizing military service, and repressing the excesses of the clergy. 17. In 680, Wamba was deposed by the intrigues of Erwig, who was supported by the clergy. Wamba abdicated, and withdrew to a convent. Erwig convoked the twelfth council of Toledo, at which Wamba's voluntary abdication was announced, and Erwig appointed his successor. The new monarch directed the council to revise and modify the laws of Wamba regarding military service, and the penalties to be imposed upon delinquents. A less severe legislation was the work of the twelfth and thirteenth councils of Toledo.

The Forum Judicum.

18. Erwig had given his daughter Cixilone in marriage to Egica, a near relation of Wamba. In 687, Egica succeeded Erwig. He charged the sixteenth council of Toledo to make a complete collection of the laws of the Visigoths; and this collection, under the name of the Forum judicum, or Fuero juzgo, long ruled the Spanish monarchy. 19. Egica had associated with himself his son Witiza, who succeeded him in 701. Witiza was tyrannical and dissolute. He allowed the priests to marry, recalled the Jews, entered into conflict with the Spanish clergy and the Pope; violently persecuted the principal lay lords, among others Theutfred and Favila, dukes of Cordova and Biscay, and sons of king Chindasuinth; and fell a victim, in 710, to a conspiracy formed against him by Roderic, son of Theutfred. Roderic, or Rodrigo, became king of the Visigoths, and his reign was the last of this monarchy. I shall not relate to you his wars with the Saracens, or the celebrated adventure of Count Julian and his daughter La Cava, who was violated by Roderic, or any of the last scenes of this history which have now become popular poetry. [Footnote 17] Political institutions are now the sole subject of our study. In my next lectures, I shall tell you of the Forum judicum, a very remarkable legislative work, which deserves our serious examination and attention.

Lecture XXV.

Peculiar character of the legislation of the Visigoths. Different sorts of laws contained in the Forum judicum. It was a doctrine as well as a code. Principles of this doctrine on the origin and nature of power. Absence of practical guarantees. Preponderance of the clergy in the legislation of the Visigoths. True character of the election of the Visigothic kings. The Visigothic legislation characterized by a spirit of mildness and equity towards all classes of men, and especially towards the slaves. Philosophical and moral merits of this legislation.

Character Of Visigothic Legislation.

Of all the Barbarian codes of law, that of the Visigoths is the only one which remained in force, or nearly so, until modern times. We must not expect to find in this code itself the only, or even the principal, cause of this circumstance. And yet the peculiar character of this code contributed powerfully to determine its particular destiny; and more than one phase in Spanish history is explained, or at least elucidated, by the special and distinctive character of its primitive legislation. This character I wish to make you thoroughly understand. I cannot now deduce therefrom all the consequences which it contains; but I think they will readily be perceived by the careful observer.

The legislation of the Visigoths was not, like that of the Franks, Lombards, and others, the law of the Barbarian conquerors. It was the general law of the kingdom, the code which ruled the vanquished as well as the victors, the Spanish Romans as well as the Goths. King Euric, who reigned from 466 to 484, had the customs of the Goths written out. Alaric II., who ruled from 484 to 507, collected and published in the Breviarium-Aniani, the Roman laws which were applicable to his Roman subjects. Chindasuinth, who reigned from 642 to 652, ordered a revision and completion of the Gothic laws, which had already been frequently revised and augmented since the time of Euric; and completely abolished the Roman law. Recesuinth, who reigned from 652 to 672, by allowing marriages between the Goths and Romans, endeavoured completely to assimilate the two nations: thenceforward, there existed, or at least there ought to have existed, on the soil of Spain, one single nation formed by the union of the two nations, and ruled by one single code of laws, comprising the essential parts of the two codes. Thus, whilst the system of personal laws, or laws based on the origin of individuals, prevailed in most of the Barbarian monarchies, the system of real laws, or laws based upon land, held sway in Spain. The causes and consequences of this fact are of great importance.

Laws Of The Forum Judicum.

Four different kinds of laws may be distinguished in the Forum judicum.

1. Laws made by the kings alone, in virtue of their own authority, or merely with the concurrence of their privy council, officium palatinum. 2. Laws made in the national councils held at Toledo, in concert with the bishops and grandees of the realm, and with the assent, more frequently presumed than expressed, of the people. At the opening of the council, the king proposed, in a book called tomus regius, the adoption of new laws or the revision of old ones; the council deliberated thereupon; and the king sanctioned and published its decisions. The influence of the bishops was predominant. 3. Laws without either date or author's name, which seem to have been literally copied from the various collections of laws successively compiled by Euric, Leovigild, Recared, Chindasuinth, and other kings. 4. Lastly, laws entitled antiqua noviter emendata, which were mostly borrowed from the Roman laws, as is formally indicated by their title in some manuscripts.

The Forum judicum, as we possess it at the present day, is a code formed of the collection of all these laws, as finally collected, revised, and arranged at the sixteenth council of Toledo, by order of King Egica. The most ancient Castilian version of the Forum judicum appears to have been made during the reign of Ferdinand the Saint (1230-1252).

Visigothic Theory Of Law.

Legislation is almost always imperative; it prescribes or interdicts; each legal provision usually corresponds to some fact which it either ordains or prohibits. Rarely does it happen that a law, or code of laws, are preceded by a theory on the origin and nature of power, the object and philosophic character of law, and the right and duty of the legislator. All legislations suppose some solution or other to these primary questions, and conform thereto; but it is by a secret bond, frequently unknown to the legislator himself. The law of the Visigoths has this singular characteristic, that its theory precedes it, and is incessantly recurrent in it—a theory formally expressed, and arranged in articles. Its authors wished to do more than ordain and prohibit; they decreed principles, and converted into law philosophical truths, or what appeared to them to be such.

This fact alone indicates that the Forum judicum was the work of the philosophers of that period; I mean, the clergy. Never did such a proceeding occur to the mind of a new people, still less to a horde of Barbarian conquerors. Assuredly a doctrine which thus serves as preface and commentary to a code, merits our best attention.

"The law," says the Forum judicum, "is the emulator of divinity, the messenger of justice, the mistress of life. It regulates all conditions in the State, all ages of human life; it is imposed on women as well as on men, on the young as well as on the old, on the learned as well as on the ignorant, on the inhabitants of towns as well as on those of the country; it comes to the aid of no particular interest; but it protects and defends the common interest of all citizens. It must be according to the nature of things and the customs of the State, adapted to the time and place, prescribing none but just and equitable rules, clear and public, so as to act as a snare to no citizen."

In these ideas on the nature and object of written law, the fundamental idea of the theory is revealed. There is an unwritten, eternal, universal law, fully known to God alone, and which the human legislator seeks after. Human law is good only in so far as it is the emulator and messenger of the divine law. The source of the legitimacy of laws is, then, not to be found on earth; and this legitimacy originates, not in the will of him or them who make the laws, whoever they may be, but in the conformity of the laws themselves to truth, reason, and justice—which constitute the true law.

All the consequences of this principle were certainly not present to the mind of the Spanish bishops, and many of the consequences which they deduced were very false; but the principle was there. They deduced from it this other principle, then unknown to Europe, that the character of law is to be universal, the same for all men, foreign to all private interests, given solely for the common interest. On the other hand, it was the character of the other Barbarian codes that they were conceived for the furtherance of the private interests, either of individuals or of classes. Thus the whole system of laws, whether good or bad, which issued therefrom, bore this imprint; it was a system of privileges, privatæ leges. The councils of Toledo alone attempted to introduce into politics the principle of equality in the sight of the law, which they derived from the Christian idea of equality in the sight of God. Thus, the law of the Visigoths was, at this period, the only one that could be called lex publica.

Theory On The Nature Of Power.

From this theory on the nature of law, resulted the following theory on the nature of power.

1. No power is legitimate except in so far as it is just, as it governs and is itself governed by the true law, the law of justice and truth. No human will, no terrestrial force can confer on power an external and borrowed legitimacy; the principle of its legitimacy resides in itself and in itself alone, in its morality and its reason. 2. All legitimate power comes from above. He who possesses and exercises it, holds it solely by reason of his own intellectual and moral superiority. This superiority is given to him by God himself. He does not, therefore, receive power from the will of those over whom he exercises it; he exercises it legitimately, not because he has received it, but because he possesses it in himself. He is not a delegate or a servant, but a superior, a chief.

This two-fold consequence of the definition of law frequently occurs in the legislation of the Visigoths. "The king is called king (rex) in that he governs justly (recte). If he acts with justice, he legitimately possesses the name of king; if he acts with injustice, he miserably loses it. Our fathers, therefore, said with reason: Rex ejus eris si recta facis; si autem non facis, non eris. The two chief virtues of royalty are justice and truth." "The royal power, like the whole of the people, is bound to respect the laws. Obeying the will of heaven, we give, to ourselves as well as to our subjects, wise laws, which our own greatness and that of oar successors is bound to obey, as are also the whole population of our realm."

Limits Of These Theories.

"God, the Creator of all things, in arranging the structure of the human body, raised the head above, and willed that thencefrom should issue the nerves of all the members. And he placed in the head the torch of the eyes, that thence might be detected all things that might be injurious. And he established therein the power of intellect, charging it to govern all the members, and wisely to regulate their action. We must therefore first regulate that which concerns princes, watch over their safety, protect their life; and then ordain that which has relation to peoples, in such sort that while suitably guaranteeing the safety of kings, we may at the same time better guarantee that of the peoples."