Part I (part 2 of 2)
After his election by this species of jury, the Adalid was thus solemnly admitted to his office. "The king gave him rich garments, and a sword and a horse, and arms of wood and iron, according to the customs of the country. By a rico hombre, a lord of knights, the sword was to be girt, and then a shield was placed upon the ground, the future Adalid stepped upon it, and the king drew the sword out of its scabbard, and put it naked in his hand. And now as many of the twelve Adalids as can assemble round the shield, grasp its edge, and lift him up as high as they may: they turn his face towards the east.--In the name of God," exclaims the Adalid, "I defy all the enemies of the faith, and of my lord the king, and of his land." And, thus speaking, he lifted up his arm, and struck a stroke downward, and he then struck another stroke across, thus describing in the air the sweet and holy sign of redemption, and he repeated this challenge four times towards each of the quarters of the world. Then the Adalid sheathed his sword, and the king placed a pennon in his hand, saying, "I grant unto thee that henceforward thou art to be an Adalid." An Adalid might have risen to command from the lowest rank in the Castilian army. He might have been a peon or foot-soldier, but he became the fellow and companion of the hereditary nobles, the lords of vassals, and the ricos hombres." In this ceremony, the author perceives a repetition of the forms used at the election of kings among the Germans, or at least at the choice of military leaders; duces ex virtute sumunt.
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Election Of Officers By A Jury.
I would by no means affirm that there does not exist, in this mode of choosing captains, in the concurrence of these twelve jurymen, and even in the number twelve itself, any remnant of old Germanic customs. This much is evident, that what has just been described was much rather a sort of chivalric ceremony in connection with the elevation of a man to a superior rank, than the election of a barbaric chief; all the forms, all the details of the elevation of an Adalid, remind us much more of chivalric usage than of Germanic custom; and it is a strange anachronism to suppose that all this took place, five hundred years before, among the Visigoths, notwithstanding that no mention is made of it in any historic monument, and, what is still more conclusive, notwithstanding that the general state of manners at that time gives no hint of anything of the kind. It is much more probable that these customs originated among the Goths during their struggle against the Arabs, in the mountains of Northern Spain, and in consequence of the new direction of mingled feudalism and liberty, which was imparted to their manners by this new position.
The Almocadene or captain of foot soldiers, the Alfaqueque or officer employed to treat for the ransom of captives from the Moors, and the Comitre or captain of a ship, were appointed in a similar manner, and by the recommendation of a jury composed, not of members of the class to which the candidate belonged, but to members of the class to which he aspired. This circumstance alone settles the question; for it is a result of chivalric, and not of Barbarian manners; it reminds us of the squire who was dubbed knight by knights, and not of the warrior who was chosen or judged by his peers.
I shall not follow the author in his researches on ordeal by boiling water and by fire, or upon trial by combat. Although we meet with traces of these customs in the old monuments of some Barbarian legislations, they were not the common law of modern peoples, during the first epoch of their establishment on the Roman territory. It was at a later period, and by the influence either of the corruption of religious ideas by superstition, or of the military organization of the feudal system, that they became developed, recognized, and formed into a veritable jurisprudence. The general facts of Europe do not, therefore, authorize us to conclude that, because they existed among the Spaniards in the fourteenth century, they also existed among the Visigoths in the seventh century. The almost absolute silence of the historic monuments of the first epoch, here retains all its authority.
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Compurgation.
The facts relative to compurgation, by the oath of a certain number of witnesses, are more important and more curious. "Compurgation," says our author, "is directed in express terms in all the Teutonic laws; but it does not appear to have been admissible in trials conducted according to the forms prescribed by the Fuero juzgo. Yet afterwards, this ordeal was widely spread as a fuero, both in civil and criminal trials. Though discountenanced by the legislature, it was retained in practice; and a forcible illustration is thus given of the stubbornness with which the Goths adhered to their usages and customs. Trial by jury, through it, in its germ was felt to be a benefit."
"As an ancient and general usage of Castile, the trial is sanctioned in the Fuero Viejo. As a local custom or bye-law of the cities of Castile and Leon and their dependencies, it was very frequently established, or rather declared, by the charters granted by their founders.
"Three thousand sueldos, according to the Fuero Viejo, were paid for dishonouring the palace of the king, or spoiling his castle; and five hundred sueldos was the price of the head of the merino, or the composition for scandalizing him; and every man who wished to save himself from the payment of these mulcts, was to defend himself by the oath of twelve men, for such was the usage of Castile in the old time. When accused of the death of another fijo d'algo, the suspected noble defended himself by the oath of eleven other fijos d'algo, himself the twelfth, and, as true knights, they were all sworn upon the Gospel Book, with their spurs upon their heels. There were two insults only which gave a Dueña, or a squire, the right of complaining that a fijo d'algo had scandalized them, viz., a blow or a wound, or the robbery of their mules or garments. Within three days, the party so injured by a caitiff knight was obliged to complain of the offence, and to disclose the injury to the fijos d'algo of the town, the labradores, and to the inmates of the fijos d'algo, if there were any, and to cause the town-bell to be rung, saying, "such a one hath thus dishonoured me." {251} These formalities having been observed, the fijo d'algo was bound to answer the complaint; reparation was made if he confessed it, by forfeiting five hundred sueldos, the price of his own head; but if he denied it, he was to clear himself by the oath of eleven other fijos d'algo, himself the twelfth. But a labrador accused of injuring a fijo d'algo was not to be admitted to defend himself by his peers; and he was unfairly compelled to swear with eleven fijos d'algo, himself the twelfth.
"These customs are taken from the general code. In peculiar districts, compurgation was so much in vogue, that compurgatrixes were allowed to female culprits. At Anguas, as well as in other towns, a woman charged with theft could defend herself by the oaths of a jury of other women. More whimsical was the Fuero of Cuenca, which is passing strange, both for the spirit of the law and the terms in which it is expressed. If perchance any husband suspected that his wife had planted horns upon his head, although he was not able to prove the fact by evidence, the wife was to justify herself by swearing to her chastity, with twelve good wives of the neighbourhood; and if they pronounced her to be pure, her husband was obliged to be persuaded that she was so.
"The customs of St. Sebastien in Guipuscoa, allowed an odd kind of proceeding, resembling the assessment of damages by the verdict of a jury. The ravisher was to pay the price of virginity, or he was to marry the object of his ungovernable passion; which punishment, as the charter wisely observes, 'is fully equal to a fine.' But if she, who had been a maid, was unworthy of becoming his wife, he was to provide her with such a husband as she might have reasonably expected to have obtained previous to her mishap, 'according to the estimation of the alcalde, and of twelve good men of St. Sebastien.'
"The fullest directions concerning the use of the ordeal are contained in the charter of Molina. Don Molrique de Lara incorporated the town of Molina, the seigniory of the noble house of Lara, in the year 1152. His charter may be quoted as the most valuable record concerning the ancient municipal jurisprudence of Castile which has yet been published, as it displays the entire constitution and government of a Castilian town. ... Fines, according to the old Gothic law, were enacted at Molina for wounds and maims. The accuser was to support his charge by three 'vecinos' or burghers of the town, if the offence was committed within its walls. {252} Two vecinos sufficed if without. And, in default of full proof, the culprit either swore with twelve vecinos, or fought with the accuser; but the latter had the choice of the ordeal. ... When a murder had been committed, if one of those engaged in the fray took the guilt on his own head, saying, 'I killed him,' the others were 'to save themselves with twelve true burghers,'--los otros salvense con doce vecinos derecheros. It might happen, that none would confess the crime; and as all were then equally liable to suspicion, the relations of the dead man were at liberty to select any one as the murderer, 'just as they thought fit;' after which the supposed murderer named eleven relations of the slain, and these, together with the accuser, swore to his being guilty or not guilty. Unanimity was required; and if one or two would not swear, that is to say, if they could not agree with the majority, each one who was so dissentient swore with twelve, that neither he, nor any one for his use, had received any bribe; then he was discharged. But if the defendant did not 'fall' by the withdrawing of his juror, he was at liberty to name another. This proceeding is remarkable; a new aspect is given to the ordeal by calling in the compurgators to swear with the accuser instead of the accused; and in this form it is, perhaps, more closely assimilated to a jury-trial. It may be observed, that a practice once prevailed in England of withdrawing the dissentient jurors, and replacing them by others, till an unanimous verdict was obtained."
Such are the facts which the author of these researches has collected on the existence of ancient Germanic customs, or analogous usages, in the towns of Castile and Leon, dating from the twelfth century. He unhesitatingly concludes therefrom that these same customs existed in the sixth and seventh centuries among the Spanish Visigoths, and formed a part of their institutions.
Errors Of The Preceding Theory.
It is inconvenient to prove that facts are not true, for it devolves on him who affirms them to prove that they are so; and, in such a case as this, when we speak of epochs separated by five or six centuries, and by such a revolution as the dispossession of a people and a foreign conquest, inductions are not sufficient. {253} The Forum judicum is absolutely silent upon the appointment of military leaders, and upon compurgation by juries; nay, more, this latter institution is incompatible with the arrangements of this code in reference to judges and the administration of justice. No other contemporary authority contradicts the Forum judicum. Must we, upon the authority of facts of much more recent date, and which refer to an entirely different state of civilization, refuse to believe proofs so direct, and testimonies so positive?
I am aware of all that may be said about the disorders of these times, the continual gaps in the laws, and the disposition of legislators to omit precisely those usages which were most simple and universal, as though they had no need to be consecrated or even indicated by formal enactment. It is, in fact, very possible that the practice of compurgation by juries was not completely unknown to the Visigoths; it recurs in all Germanic customs, and it may not have disappeared either entirely or all at once, even after the introduction of a code derived principally from the Roman laws. But it is impossible to believe, in spite of this code, that it continued to be the common law, the fundamental institution, the veritable judicial system of the nation.
It is more easy to explain, with likelihood, the existence of these practices among the Spanish Goths of the twelfth century, than to justify, without proofs, or rather in opposition to all evidence, the arbitrary supposition of their prevalence among the Visigoths of the seventh. Such institutions have in themselves something of spontaneity; they correspond to a certain degree of civilization, to a certain state of social institutions; we meet with them under forms more or less similar, but fundamentally analogous, not only among all the Germanic peoples, but also among nearly all those barbaric peoples which, scarcely issued from a nomadic life, begin to establish themselves on a new territory, after they have conquered it. Now, the destruction of the monarchy of the Visigoths by the Arabs suspended the course of the institutions which it had received two centuries before, broke off the councils of Toledo, crushed or greatly diminished the predominance of the clergy, and, in fine, put a stop to the civilization which had commenced, and gave to affairs an entirely new direction.
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Birth Of Free Institutions.
Scattered among the mountains, frequently wandering, separated into various bands, those of the Goths who did not submit to the conquerors, returned, so to speak, towards the life which their ancestors led in the forests of Germany. Roman institutions, Roman maxims, all that collection of laws and ideas which they had received from the clergy, and which had prevailed over their own habits, disappeared almost necessarily in this shock, or at least were retained only by those Goths who remained under the dominion of the Mussulmans. The companions of Pelagius, up to a certain point, became Germans once more, from sheer necessity. It was after this involuntary return to their primitive condition, and, by consequence, to their ancient institutions, that they resumed the offensive against the Arabs, and reconquered Spain by degrees, bringing back with them those political and judicial customs, usages, and practices, which they had partially regained. Free institutions, moreover, could not fail to regain vitality at this period; for they alone can supply strength in times of danger or misfortune. It was not in the power of the customs of the officium palatinum, and of the maxims of the councils of Toledo, to restore the Goths to their subjugated country, and reinstate the descendants of Chindasuinth upon the throne of their fathers. The participation of the people in public affairs, the sternness of Barbarian manners, and the energy of irregular liberty, could alone produce such effects. There is every reason to believe that the institutions of Spain, after the re-establishment of the kingdoms of Castile, Leon, Arragon, &c, were new institutions, and the result of the new position of the Goths, much more than the legacy of the ancient Visigoths. We find proofs of this in the general Cortes of the kingdom, in the constitutions and liberties of the towns, in the whole political order of the State, which has no connection whatever with the old monarchy, and follows much more naturally as a result of the condition and necessities of new monarchies. The political system established by the councils of Toledo and the Forum judicum could not have taken deep root; it fell before necessities which it was unable to meet.
{255} Conclusion.
The Forum judicum itself would perhaps have completely succumbed, had it not continued to be the law of those Goths who had submitted to the yoke of the Moors; it moreover regulated civil order, which is always more firmly fixed, and less influenced by revolutions. It therefore continued, in this respect, to be the general law of Spain; whilst political order assumed a new form and was regulated by other institutions.
The Forum judicum and contemporary authorities are the only true source at which we can study the political institutions of the ancient Visigoths; a source which is doubtless incomplete, and which does not inform us of all that existed; a source which, probably even, especially neglected to gather up what still remained of Germanic manners and habits, but which it is impossible to repudiate in order to admit facts and general institutions which are directly contrary to it. The consequences which I have deduced from these original and contemporary authorities, therefore, still subsist, and determine the true political system of the monarchy of the Visigoths. The imperial government, and ecclesiastical theories, were its constituent elements. These elements prevailed over Germanic customs. They were doubtless modified in order that they might be adapted to a Barbarian people; but, by modification, they gained dominion, and became the general form, the fundamental law, of the State. If the Spanish Goths afterwards entered upon a course more analogous to that pursued by other modern nations of the same origin, it is in the invasion of the Arabs, in the second conquest of Spain by the re-Germanized Goths, and in the effects of this great revolution, but not in the institutions of the monarchy of the Visigoths, that we may discern the causes of this procedure.
End Of Part I.
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