THE
VISIGOTHIC CODE
(_FORUM JUDICUM_)
TRANSLATED FROM THE ORIGINAL LATIN, AND EDITED BY
S. P. SCOTT
Author of “Through Spain” “History of the Moorish Empire in Europe”
Member of the Comparative Law Bureau of the American Bar Association
_Lex est magistra vitæ_
I-II-2
BOSTON
THE BOSTON BOOK COMPANY
1910
Copyright 1910
BY THE COMPARATIVE LAW BUREAU OF THE
AMERICAN BAR ASSOCIATION
_The Riverdale Press, Brookline, Boston, Mass._
TO
MY FELLOW MEMBERS
OF THE COMPARATIVE LAW BUREAU
IN THE HOPE THAT IT MAY PROVE AN ACCEPTABLE CONTRIBUTION
TO THE LITERATURE OF THE NOBLE SCIENCE OF THE LAW
THIS TRANSLATION
OF ONE OF THE MOST VENERABLE MONUMENTS OF JURISPRUDENCE
IS DEDICATED
EDITOR’S PREFACE
It was well said by Gibbon that “Laws form the most important portion
of a nation’s history,” for from them, more impartially than from
any other source, we derive information of the customs, virtues,
vices, political ethics, faults, follies, and religious prejudices
of a people. Especially is this true of the Visigothic Code. In it
are depicted the traditions and history of a race which, originally
nomadic, with unprecedented rapidity became stationary; and, from
being for ages subject to institutions formed by the desultory acts of
tumultuous assemblies, often dictated by caprice and enmity, in less
than two generations acknowledged obedience to a government partly
imperial, partly theocratic. In the annals of no people so recently
barbarian, is to be found more marked and substantial progress,
from the primitive surroundings of pastoral and predatory life, to
the tastes, the laws, the refinements, and the social usages of
civilization.
An analysis of the Visigothic Code may be made under three heads:
historical, descriptive, comparative. Its story is practically that
of the Gothic monarchy in Spain. In the variety and scope of its
provisions; in the skilful adaptation of its canons to the purposes
of ecclesiastical supremacy; in the care with which it preserves the
distinctions of caste; in the accuracy and conciseness of its maxims
defining the principles of equity; in the elaborate, yet simple,
arrangement of its judicial system; in the thoroughly philosophical
spirit that pervades the greater portion of its pages; it is radically
different from, and, in many respects superior to, all other
collections of legal enactments of ancient or mediæval times.
It is far more instructive and suggestive than a chronicle. Nowhere
have the purposes of the law been more ably stated than in its terse
and expressive phraseology. It proclaims the sentiments of a lofty
morality. It appreciates the true object and end of legislation. In
its stern and inflexible disregard for the arrogant claims of superior
wealth and station, it assured to the most lowly the administration of
impartial justice.
The Goths, a branch of the Indo-Germanic race, from which the Caucasian
of modern times is descended, and whose habitat once extended from
Western Europe to the great plains of Central Asia, seem to have
wandered farther, and to have changed more materially, as regards
their laws, customs, and religious belief, than other tribes of
migratory barbarians. Distinct from the Germans, or Teutons, they
have, nevertheless, often been confounded with them; a fact due to
their nomadic tendencies, personal appearance, and general habits
of life. The similarity which characterized the vast hordes, or
vagrant multitudes, which issued in ancient times from the _officina
gentium_, has been the cause of much confusion in the more or less
fanciful accounts of classic annalists and historians. The coincidence
of numerous terms of the Gothic language with those of Sanscrit, and
the identity of many roots of words in both languages, have established
the origin of the Goths to be Indian, and not Scandinavian, as was
once generally supposed. It is related by Herodotus, that Darius, a
thousand years before Christ, repelled from the confines of the Persian
dominions, across the Danube, a great migration of barbarians, moving
and living on horses and in chariots. This people, known as Scythians
in antiquity, were the ancestors of the modern Slavs, and kindred of
the Goths. Driven back by the Persians, they, with others who followed
them, distributed themselves over Northern Europe, whence, in time,
they descended to overwhelm, with their numbers and their valor, the
decadent and tottering Roman Empire.
The original Goths were typical savages. They had practically no
political organization; dressed in skins; disdained all labor; showed
no mercy to their enemies; killed their parents, when they became old
and infirm; had few religious ideas; worshiped a drawn sword as a
divinity; were filthy in their personal habits; and recognized only
the law of the strongest. From such unpromising progenitors was derived
the race destined to be, in large measure, the lawgivers of Europe.
The Visigoths, in the course of conquest firmly established in Gaul
and Spain, and everywhere victorious over the Romans by arms, were, in
their turn--as inevitably happens under similar circumstances--both
enervated and subjugated by the arts of luxury and peace. Despite their
surroundings, they, for a long period, preserved their ancient habits
and traditions. For more than a century they went about half-clad and
unkempt, as they had done on the shores of the Euxine and the Baltic,
to the astonishment and disgust of the polished Roman provincials, who
had inherited the luxurious tastes, courteous manners, and artistic
conceptions of Greece and Italy. To the last, they wore long hair as
a badge of sovereignty; a barbarian custom which first became known
to the Romans, when the city was saved by Marius from the invasion of
the Cimbri and Teutons. In the early days of their domination in the
West, the laws of the Goths, like those of all other unlettered races,
were based upon custom and oral tradition. They carried with them in
all their migrations the same principles which had guided them in
distant countries, and under a far different political and climatic
environment. Many of their rules and customs were never abrogated,
and eventually constituted no unimportant part of their Code. Under
new conditions of government and society, changes became necessary in
their jurisprudence. Roman laws, generally subjected to modification,
and rarely adopted _in toto_, were incorporated into their
statutes. Never, however, was servile obedience, without remonstrance,
offered to despotic authority. Their government was strictly one
by law. The Crown, long elective, and unsuccessfully attempted to
be made hereditary within a quarter of a century of the Saracen
invasion, while at first bestowed by the votes of the entire people,
ultimately became dependent upon the choice of the clergy. The Throne
and the Altar were thus closely connected, and, to a certain extent,
necessary to one another. The bishops, having the power of election,
and likewise of deposition, exercised unbounded influence over the
king, who was indebted to them for his throne. On the other hand, the
sovereign had many opportunities for granting favors and privileges
to the ecclesiastical order, a prerogative which he did not hesitate
to frequently exercise. Ecclesiastical supremacy, however, rarely
countenanced oppression in the early ages of the Gothic monarchy. The
Visigoths, in common with others of their race, professed the Arian
heresy, whose adherents, unlike their successors, the Catholics, were
never noted for bigotry or intolerance, and, as a rule, never accepted
a point of religious faith or discipline without free and careful
deliberation and debate. The omnipresent sacerdotal order, basing its
claims upon Divine precept and example, discouraged, with unfaltering
persistency, the tyranny of the Crown. The coronation oath of the king
was long and minute and abounded in promises to support and defend
the interests of his subjects. When invested with the insignia of
royalty, he was admonished “_Rex ejus eris si recta facis; si autem,
non facis, non eris._” “Thou shalt be king so long as thou dost do
right; but if thou do not do right, thou shalt no longer be king.”
The legal and political events of the Visigothic domination are written
in the annals of its ecclesiastical councils, which designate the chief
events of every reign. These were of three kinds, national, provincial,
diocesan. Of the national councils there were nineteen in all; one of
which was held in the fifth century, two in the sixth, and sixteen in
the seventh; all, after the sixth council, being held at Toledo, which
gave to that venerable city vast and permanent prestige and influence
in the affairs of the hierarchy and the kingdom. The national councils
assembled at the order of the king, who also presided over them; and
this prerogative, strange to say, was assumed and exercised, without
remonstrance from Christian prelates, by the emirs of Moorish Spain.
These ecclesiastical convocations which have been frequently referred
to as the first representative popular assemblies of Europe, were
very far from deserving that title. While, originally, the laity were
admitted to their deliberations and participated, to some extent, in
the discussion of secular matters, the clergy, at all times, were
supreme in power, as they were superior in learning and eloquence. By
degrees, laymen were excluded; the secular element lost its influence;
there was no representation, even theoretical, either of the nobility
or of the people; the sovereign was but the presiding officer of the
assembly; legislation was wholly inspired by the priesthood; and the
authority of the clergy became absolutely paramount. The State became
synonymous with the Council; the theory of popular representation had
vanished; and, while the monarch still assumed the name and state of
royalty, the government of the once independent and liberty-loving
Goths was, in fact, purely and essentially theocratic, and the clergy,
from being teachers, advisers, and pious mediators, were now the
absolute rulers of the Peninsula. This predominance, progressive from
the very beginning, was felt and acknowledged in everything, whether of
greater or minor importance, which affected the welfare of the kingdom.
Although the bishops sometimes imposed upon the weakness of their
kings, their rule was, in the main, beneficent; and the theocratic
character, which they imparted to the government, elicited the respect
of the nobility, and the reverence of the people. These wise and pious
legislators contributed, by their tact and piety, to the thorough
fusion of the victorious and subjugated races. They confirmed the
royal power. They stifled conspiracy, and suppressed rebellion. They
crushed the treasonable aspirations of many a daring aspirant to the
throne. The truculent impulses of the barbarian rabble, never entirely
extinguished, were quietly, but effectually, restrained by their
judicious display of gentleness, firmness, and devotion. By anointing
the sovereign with holy oil, at his coronation, they confirmed his
title, and instituted a ceremony which came to be regarded as essential
to the royal accession. As they possessed a monopoly of the meagre
knowledge of the age, they enjoyed an immense advantage over all other
classes, which they did not hesitate to employ, by every available
means, for the maintenance and perpetuation of their authority.
Thus, under the Arian system, the government of the clergy was, all
things considered, highly salutary. With the conversion of the nation
to the Catholic communion, the organization of the hierarchy was
little altered; but a far different spirit animated the legislative
assemblies. Heresy was punished by the most barbarous laws. The
Jews, whose wealth and intelligence had long been conspicuous in the
Peninsula, were made the subjects of legal enactments especially
devised to deprive them of their property and their liberty. Every
expedient was employed to bring them within the pale of the Church.
Authority over them was vested in the priesthood, and where a Jew was
tried for a criminal offence, it was provided that an ecclesiastic
should always be present. Such Jews as refused to profess Christianity
were subjected to the most stringent and harassing regulations. They
were placed under the constant supervision of spies. Exorbitant taxes
were levied upon them, and, in addition to their own, they were
compelled to pay those of their apostate brethren. They were not
permitted to testify in the courts, to sue, or to defend an action
at law, unless the adverse party was one of their own sect. Under
the pretence of loans, enormous sums were wrung from their unwilling
hands. By means of frivolous pretexts and false accusations, they
were frequently reduced to servitude. The laws even went so far as
to prohibit them from entertaining thoughts relative to the customs
and observances of their sect. Yet, under all these oppressive
restrictions, the Hebrews prospered. They were the wealthiest class
in the kingdom, and well understood how to employ their riches
for their own preservation and profit; while the heavy penalties
prescribed for the bribery of judges and other officials, indicate
how common and widespread was the influence of such corruption. The
extraordinary intelligence and information of the Jew rendered his
advice and assistance always acceptable, and often indispensable, to
the ignorant and profligate noble; services which were often requited
with open protection. Nor was this tolerance and partiality confined
to the laity. Not only were the clergy often remiss in enforcing the
laws against the Hebrews, but the Code specifically and significantly
prohibits their intimacy with Jewish women. In certain offences
where punishment was meted out to them for breaches of the law, they
underwent the Biblical penalty of being stoned to death; and this was
inflicted by certain of their brethren, who, it appears, were appointed
for that very purpose, and were recompensed for their treachery with
the property of their victims. The persecution of the Hebrew under
these atrocious laws, exercised indirectly a great influence upon the
destinies of Europe. The Jews of the Peninsula had long entertained
intimate relations with their co-religionists of the northern coast of
Africa; the oppression under which they languished; the confiscation
of their property; the seizure of their children; their enforced
proselytism; and the prospect of the ultimate annihilation of their
race, tightened the bonds of union existing between them and their
African brethren; established an understanding between itinerant
traders and the Moorish conquerors of the West; and thus invited and
accomplished the Mohammedan conquest of Spain. The most drastic of
these regulations against the Jews were enacted under the reign of
Ervigius, in the latter part of the seventh century; and, less than
forty years afterwards, the whirlwind of Saracen invasion swept the
Visigothic monarchy from the face of the earth.
The cruel and unrelenting pursuit of the Jews, commanded by the
Visigothic Code, was the foundation of the Spanish Inquisition and
its diabolical procedure. From it were derived many of the dogmas,
tortures, and penalties, of that awful tribunal; with the exception,
that what was once only directed against a single sect, was destined
eventually to include the votaries of every heresy. That the
descendants of a nation renowned throughout all antiquity as ardent
lovers of liberty, should, in a few short generations, be transformed
into the most merciless of persecutors, is one of the most remarkable
political anomalies to be met with in history. Even San Isidoro,
referring to driving the Jews to baptism, and into enforced communion
with the Church, declared indignantly that it was “_non secundum
scientiam_;” a remark which, made under the reign of Sisibutus,
in the beginning of the seventh century, is one of remarkable
significance, as emanating from a Father of the Church, in an age of
almost universal ignorance and religious prejudice.
The Hispano-Gothic church was absolutely independent of Rome. The
supremacy of the pope was not recognized, and, in all the annals
antedating the Reconquest, there is no mention of an appeal to the
Holy See on questions of government, ceremonial, or doctrine. The
bold and haughty spirit of the Basques and Iberians, animated the
ecclesiastics of both the Arian and Catholic churches of Spain. Before
the Saracen conquest there were no archbishops. The metropolitans, or
bishops of the principal churches, were equal in rank in the hierarchy,
until the national councils began to be regularly held in the sixth
century; when, gradually, by common consent, Toledo became the seat
of the Primacy, a distinction which it has ever since maintained.
The dominance of the priesthood in the government, once established,
advanced with prodigious strides. In the eighth Council of Toledo,
seventeen nobles and fifty-two bishops sat; in the sixteenth Council,
held fourteen years afterwards, there were in attendance sixteen
palatines and counts, and seventy-seven prelates, and, with this
preponderating ratio of ecclesiastics, the authority and importance
of the latter naturally increased. The morals of the clergy in that
age, while far from being blameless, were not subject to the reproach
which they so justly incurred from the profane and ribald poets and
novelists of subsequent times. Their influence over the people was
unbounded, and their popularity, for the most part, well deserved.
Their intervention in behalf of the oppressed effectually curbed the
ferocious instincts of the monarch and the noble. The criminal, pursued
to the doors of the church, or to the foot of the altar, could not be
removed from their sacred precincts without the consent of a priest,
or a bishop; and the mere fact that he sought refuge in the House of
God rendered him exempt from the death penalty, no matter how grave
the character of his offence might be. To the bishop was granted the
right of supervision over the conduct of the judge, when the latter
exceeded his powers, or rendered decisions manifestly in violation
of justice. The Goths, the most plastic and obedient of proselytes,
regarded their spiritual advisers with peculiar respect and veneration.
They were their guides, their protectors, their benefactors. Nor was
the potent influence of the clergy in the maintenance of justice and
right, confined to the lower orders. They pronounced anathemas against
treason; excommunicated pretenders to the throne; curbed the ambition
and greed of marauding nobles; compelled the reverence of aspirants
to the royal office; and exacted from the king, who was often their
creature, the deference and submission which they considered due to
their sacred office and authority.
The people of the Peninsula, while apparently attached to the Arian
heresy, evinced little steadfastness in faith with the appearance of
orthodox Christianity. Confident in their power, and well aware that no
monarch would venture to promulgate an edict menacing their supremacy,
or, in any way, conflicting with the privileges of the Church, the
priesthood did not require, as an essential condition of its validity,
that every law should be confirmed by the voice of a council.
Consequently many regulations were established by the sole authority
of the king; and this privilege, at first merely a concession, came,
in due time, to be considered and accepted as a royal prerogative. The
appeal to the sovereign instead of to the pope, further strengthened
the authority of the throne; but never, at any time, was the king
permitted to forget to whom he owed his election and his title; and
that the same power which had raised him to that exalted position
could, at any time he violated his coronation oath, depose him, and
reduce him again to the subordinate and comparatively obscure position,
from which ecclesiastical favor, aided, perhaps, by his own talents and
ability, had raised him.
This circumstance, alone, shows the primitive state of society under
the Visigothic domination; a state largely due to the simplicity of
popular manners; the spirit of inherited traditions; the enjoyment of
intellectual preëminence by a single class, in its turn, favorable to
the overwhelming growth of sacerdotal power.
The Visigoths were different from other barbarians, in that, in
legislation and the management of their civil affairs, they manifested
a sense of humanity, and a genuine philosophy, rarely to be found even
among nations that are thoroughly civilized. They intermarried with the
conquered race. Under their system all persons were equal before the
law. The distinction between citizen and foreigner, as defined by the
_Jus Civile_ and the _Jus Gentium_ of Roman jurisprudence,
was repudiated. The punishment for crime was graded according to the
wealth of the offender, rather than according to the rank and station
of the party injured. Children of both sexes could inherit alike the
property of their parents; a measure of undoubted justice, but in
direct contravention of the laws governing the descent of property in
most of the countries of modern Europe. The slave being merely a thing,
an injury to him was rated according to his commercial value. His
rights were, however, carefully guarded against the abuse and cruelty
of his master. When emancipated, his freedom was either absolute, or
burdened with certain restrictions by the terms of which he and his
family forever owed loyalty and obedience to his former owner, and
were, in turn, entitled to the advice and protection of the latter and
his descendants.
The love of freedom, as with all migratory races, was strong in the
hearts of the Visigoths. Always obedient to the Church and to their
king, they, nevertheless, stubbornly resisted every encroachment upon
their ancient rights and liberties. The throne, originally elective,
was not as far removed from the body of the people as it was in other
nations; for any person of the pure blood of the Goths who had never
entered the cloister, or been sentenced for some crime by a court, and
who was eminent for great qualities or distinguished services, could
aspire to the supreme power. At the time of the monarch’s accession,
justice, honor, truth, piety, faith, and mercy, were diligently
inculcated, to be ever observed as virtues most appropriate and
becoming to the royal office. At the same time, fearful penalties were
denounced against all princes who violated the coronation oath; and,
during the ceremony, these penalties were repeated aloud by all persons
present, both ecclesiastics and laymen. Subsequent to the seventh
century, when Catholicism was adopted, the generous and noble spirit
which had hitherto pervaded the councils of the kingdom, was supplanted
by a fierce intolerance, and the king was obliged to bind himself to
the relentless extirpation of heresy. The sovereign was treated with
much less consideration under the Gothic system, than under those
established by other peoples in ancient or in modern times. Regal
supremacy, while necessarily invested with much importance in time of
war, on the other hand, in time of peace had comparatively little
significance. Not until the reign of Leovigild, in the latter part of
the sixth century, did the Gothic kings assume the outward marks and
insignia of royalty. They did not differ in dress or general appearance
from their subjects, nor was a conspicuous place reserved for them in
the assemblies of the people; all classes were entitled to address
their sovereign with familiarity; and, still retaining in his manners
and demeanor the traces of his barbaric origin, he seemed rather the
elective magistrate of a republic (which to all intents and purposes
he was) than the supreme ruler of a great and powerful nation. The
right of primogeniture, derived from feudalism, and omitted from the
Salic Law, was likewise unknown to the Goths. A monarch, in the same
manner as a private individual, could only transmit to his heirs the
personal property which he, in his turn, had acquired by his talents,
or inherited from his ancestors. Like the chieftains of the Ostrogoths
and other barbarians, who considered long, blond hair a badge of royal
authority, he assumed the title of Flavius, from the Latin flavus, as
indicative of this august and highly prized distinction.
With the fusion of races the identity of the Goths was speedily and
completely lost. The military spirit to which they were indebted, not
only for their civil and political organization, but also for their
integrity as a people, and for their preservation as well, disappeared.
In former times, and for ages after their occupation of the Spanish
Peninsula, that spirit which was their most distinguishing trait,
and the most prominent one which they possessed in common with the
Germans, was, by degrees, imperceptibly weakened, and finally lost in
the premature decadence of an entire nation. The servile spirit of
the Roman colonist and slave, whose sense of independence had been
crushed by centuries of oppression, now asserted its predominance
over the bold and active sentiments of the hardy soldiers who had
overrun and conquered Europe. Under the Visigothic polity there was
no pay for military service, and the glory and adventure held out
by a campaign, were not considered a sufficient recompense for its
hardships. Formerly, the Goths paid their soldiers only in time of war,
and, during peace, the army was supported by taxes. The Feudal System,
originally derived from the _emphyteusis_, or perpetual lease,
of the Roman law, with its rule exacting military service for the
possession of a fief, had not yet been established. The unconquerable
repugnance of the Visigoths to war caused them to avoid, under every
imaginable pretext, extending their aid to their rulers in times of
either conquest or invasion. They refused to protect the person of
their monarch, or defend the frontiers of their country. The nobles
and wealthy landowners persistently violated the law requiring them
to bring into battle one tenth of their slaves, thoroughly armed and
equipped. The ninth book of the Code contains stringent regulations
against such delinquents as, under various pretences, sought to evade
the service in the army, due from them and their dependents; and it
was said that, at one time, half the able-bodied population of the
Peninsula had, by reason of their refusal to obey those regulations,
rendered themselves liable to the dreadful penalties which they
imposed. In this fact alone is significantly disclosed, not only the
thorough deterioration of the once valiant Gothic race, but one cause
of the amazing and unprecedented success of the Saracen power. The
Mohammedan squadrons, impelled by the mighty force of fanaticism,
could not be withstood by a mob of ill-treated peasants and effeminate
nobles, disunited by faction, without reverence for their king, or love
for their native land; in whom the martial spirit of their ancestors
had long been supplanted by the ignominious passions of cruelty and
avarice; where their leaders served under fear of the confiscation of
their property, and the rank and file were driven into action with the
scourge.
The original Visigothic laws, wholly based upon oral tradition, were
first reduced to order and committed to writing by Euric, at Arles, in
the latter half of the fifth century. This collection is unfortunately
lost, but many of its provisions were incorporated into the Visigothic
Code, although, no doubt, subjected to important and numerous
modifications in the course of centuries. At the beginning of the sixth
century, Alaric II. promulgated the _Breviarium Alaricianum_,
a body of laws compiled mainly from the Codes of Justinian and
Theodosius, which collection was the source of the subsequent Lombard
and Bavarian Codes. From the two compilations of Euric and Alaric,
under the reigns of Kings Chintasvintus and Recesvintus, 649–652,
was formed the _Forum Judicum_, or Visigothic Code; the most
remarkable monument of legislation which ever emanated from a
semi-barbarian people, and the only substantial memorial of greatness
or erudition bequeathed by the Goths to posterity. Like the Roman
works on jurisprudence it is divided into twelve books, sub-divided
into titles and chapters. The language in which it is written is
monkish Latin, a barbarous jargon, extremely difficult to translate,
and vastly different from the polished idiom of Tacitus and Cicero.
Its examination discloses many discrepancies, variations, ambiguities,
and contradictions, unquestionably due to the ignorance of the various
transcribers; a fact which is not surprising when the imperfect
knowledge and defective education which prevailed in Spain during the
seventh century, are considered. There is no mention of the _Forum
Judicum_ during the Saracen domination, except that it is known to
have been preserved by the Moors; and as Christians were permitted the
use of their own laws, where they did not conflict with those of the
conquerors, upon the regular payment of tribute, it may be presumed
that it was the recognized legal authority of Christian magistrates
during the period that Spain remained under the Moslem sceptre. When
Ferdinand III. took Cordova in the thirteenth century, he ordered the
_Forum Judicum_ to be adopted and observed by its citizens, and
caused it to be rendered into Castilian. This translation, which is
usually appended to the Latin version, is incomplete, incorrect, and
unsatisfactory. It contains many omissions and substitutions; the
meaning of the sentences, in many cases, is not even approximately
given; the proper names seem to have originated in the fertile
imagination of the monkish translator; and, not infrequently,
interpolations, derived from some unknown source, have entirely usurped
the place of the original text.
In considering the general details of the Visigothic Code, one of
the striking and suggestive features which presents itself is the
inculcation of exalted precepts of honor, probity, and justice, and,
at the same time, the acceptance and adoption of a belief in the
basest and most grovelling forms of superstition. Upon the same page
where the duties to be observed between man and man are set forth
with a perspicuity and a piety worthy of all praise, appear laws
denunciatory of divination and sorcery. With all its imperfections,
however, it presents us not only with noble and accurate conceptions of
justice, but indirectly gives us, as well, a faithful and picturesque
representation of the gradual, but constant, advancement of a people.
Unlike other Codes which preceded and followed it, it is deficient
in regularity of classification and division, and, in that respect,
signally differs from the Institutes of Justinian, whose arrangement
was almost literally followed by Blackstone in his Commentaries
on the Laws of England. The irreconcilable character of many of
its enactments; the identity of penalties for offences of a widely
different gravity and nature; the enunciation of the most sublime
principles of morality, side by side with mandates requiring the
infliction of tortures whose inhumanity would almost appal a savage;
the absence of ordeals and the wager of battle, so frequently appealed
to in that and following ages, as proofs of guilt or innocence; are,
in addition to those previously referred to, among the most prominent
characteristics of this extraordinary compilation. The array of one
caste against another, a practice which has never failed to destroy
a government and degrade a people, is conspicuous everywhere. The
court was regarded rather as a place of execution than the seat of the
rendition of justice; the judge rather an avenger of injury, than the
representative of the law and the guardian of social order. The words
_ultio_ and _ulciscor_, constantly recurring in the Code,
disclose only too plainly the vengeful sentiments of the legislator. In
common with all barbarians, and likewise with the majority of civilized
men, force, with its consequent inconvenience and suffering, was the
only idea which appealed strongly to the Gothic mind, and the moral and
deterrent influence of legislation was almost entirely lost sight of.
In the arrangement of the Visigothic Code, the oldest laws, that is,
those based upon the unwritten observances of ages, are without any
evidence of the time of their adoption; such as are derived from Roman
sources are designated _antiqua_, or ancient; the edicts of kings
are promulgated under the royal title, a distinction indicative also of
those which were exclusively enacted by the national councils.
In an age of ignorance and degeneracy a body of laws enacted and
compiled by a semi-barbarous people, was necessarily largely dependent
upon the maxims and precedents of such as had preceded it. The harsh,
and often cruel, provisions of the Twelve Tables and the Civil Law,
were greatly softened in the Visigothic Code. By the terms of the
Roman _Nexum_, a debtor hypothecated himself as security for
his obligation, forfeiting his liberty in case he failed to fulfil
his contract; and thus, as is also declared by the Bible, “the
borrower was servant to the lender;” a custom absolutely prohibited
by the _Forum Judicum_. The relations of patron and client were
essentially different under the Roman and Gothic dominations. At Rome,
the condition of clientage could not be renounced; in Gothic Spain a
freedman, or _libertus_, had the right to leave his patron and
select another, provided he previously surrendered all the property
he had received from his benefactor; the obsequious behavior of the
Italian client often degenerated into abject servility, which was
regarded with gratification by its object; while among the Visigoths
nothing was exacted by the patron for his favor but the practice of
obedience, and the manifestation of gratitude. The rules governing
the control of public lands did not differ greatly under the civil
administration of the two races; in the Peninsula, two-thirds of the
conquered domain, in accordance with the usual custom of barbarians,
became the property of the State by right of conquest; and the
remaining third was abandoned to those who had been vanquished in
the appeal to arms. The _Lex Talionis_, a prominent feature in
the history of all nations in the early times of their formation,
while known to have existed at Rome from the reign of Numa, and which
appears with such frequency in the enactments of the Visigothic
Code, was unquestionably borrowed by the authors of the latter from
the institutions of Moses, in accordance with their theocratic
prejudices and predilections. According to Roman ideas, a person
unquestionably guilty of crime, and caught _in flagrante delicto_,
was not entitled to a trial, which was considered superfluous, and
his punishment could be inflicted then and there; a principle also
frequently acted upon by the Visigoths.
This famous Code consists of laws emanating from four different
sources: first, those based on ancient Gothic customs; second, such
as were adopted from the Roman jurisprudence; third, the acts of
ecclesiastical councils; fourth, edicts of kings, promulgated at
different times, according to the various exigencies that arose; all
of which seem to have had equal validity. One of the most remarkable
characteristics of this collection is the maintenance of the principle
of legal responsibility, irrespective of wealth, rank, or dignity.
Every precaution was taken to prevent the interference of the sovereign
with the magistracy and the tribunals, in instances where the royal
power might be improperly exerted to pervert the course of justice;
and where the judge, yielding to superior influence, rendered an
unjust decree, that decree was declared to be void. In cases where an
appeal was taken to the throne, the king, in the consideration of the
questions brought before him, was admonished to strictly observe the
forms and principles of equity, and to render his decision accordingly.
While the judge derived his authority from the Crown, he was in fact,
independent of it; and, equally removed from the voice of popular
clamor, unlike the elective magistrates of the tribunals of antiquity,
was under no obligations to the populace. The sacerdotal legislator,
never unmindful of his own interests while defining the rights of
the people, was, nevertheless, himself subject to the secular power.
While this was the case, however, a great distinction existed between
the punishment inflicted for practically the same offences upon the
clergy and the laity, with the advantage entirely upon the side of
the former. The penalties usually imposed upon ecclesiastics for
breaches of the law were fines, penance, and monastic seclusion; and
their sacred office was a safeguard against the horrible and degrading
punishments from which even the highest nobility were sometimes unable
to escape. In this undisguised leniency, and practical exemption from
severe judicial sentences, may be discerned the germ of the “benefit
of clergy,” carried to such lengths, and productive of such manifold
injustice and abuse, in mediæval times.
The theocratic principle animating the Visigothic Code is conspicuous
in almost all its chapters. The pious and significant maxim, “_Omnis
potestas a Deo_,” pervades it from beginning to end; in the
preambles, which recite the reasons for the enactment of the laws; in
the body of the latter, which appeal to Divine sanction for their
promulgation; in the penalties, which breathe the ferocious sentiment
of the ordinances of the Pentateuch. Many of the latter are copied
almost verbatim from the Bible. Recalcitrant Jews were stoned to
death. Adultery was the only cause for which divorce was permitted. In
the long, elaborate, and frightful oath which Jews, apostatizing to
Christianity, were compelled to take and subscribe, everything that
was most reverenced by them and could be considered most binding, was
borrowed from the Old Testament, and, supplemented by appeals to, and
confessions of, Christian doctrine, invoked the direst maledictions
upon the heads of all who, either tempted by ambition or influenced
by hypocrisy, violated their vows, the impressiveness of which was
increased by every circumstance of solemnity, superstition, and power.
In the contest for ascendency, the Church possessed the advantages
of thorough organization and submissive obedience of inferiors, of
reverence for alleged celestial origin, and of unity of language;
advantages never, in any former age, enjoyed to such an extent by
any other society, political, or religious; and which, inspiring
respect among all classes, founded upon a solid and enduring basis the
magnificent fabric of her authority and grandeur.
The innumerable details relating to the infringement of the rights of
property show that many abuses must have previously existed. The great
number of laws designed for the protection of agriculture, indicate
the importance with which it was considered by a people who, but a
few generations before, had been shepherds and predatory vagabonds.
The Visigoths were the first of the nomadic barbarians of the North
to acknowledge the privileges and responsibilities attaching to the
occupation of a permanent and limited domain. The offences of trespass,
and forcible entry and detainer, are clearly and explicitly set forth.
Severe penalties are denounced against all who deface, remove, or in
any way interfere with, established landmarks. Questions relating to
transfers, devises, partition, leases, land belonging to the state,
boundaries, disputes concerning the ownership of real-property, and
title by adverse possession, are discussed and determined with an
ability and an accurate conception of the principles of equity, most
remarkable for that age. While enjoyment of liberty was theoretically
the unquestioned right of every person except the slave, the limits of
castes and classes, adopted, for the most part, from the Roman polity,
were strictly defined. Notwithstanding minute and often voluminous
provisions, designed for the protection of the people, oppression by
the rich and powerful was not unusual, and was sedulously provided
against. Cruelty, and persecution of the weak, could be practised by
no one, no matter how exalted his dignity, without reprobation and
punishment. The interference of individuals of rank in the trial of
causes, and their obstruction of the process of the law--evidently a
common practice, and a source of endless trouble in former times--is
repeatedly prohibited; and every attempt was made to preserve the
courts from external influence, and insure the justice and impartiality
of their decisions. An appeal could be taken from the decision of the
judge to the governor of the city, from him to the governor of the
province, and from the latter to the king. Where a person was too poor
to incur the ordinary expenses of litigation, he could appeal directly
to the bishop; who, as the protector of all within his diocese, was
authorized to settle their claims and disputes, and enjoined to
interpose his good offices to prevent the exercise of injustice and
injury. Founded upon the strict principles of morality which everywhere
should control the conduct of mankind, the precepts of the Visigothic
Code present a strong and remarkable analogy to those which govern
the proceedings of modern judicial tribunals. A contract made under
duress, or vitiated by fraud, was void. A principal was liable for the
act of his agent, where the latter was known not to have exceeded his
authority. A master was responsible in damages for injuries committed
by his slave. Guardians were held to strict accountability in the
treatment of their wards. The rights and disabilities of minors are
clearly and definitely stated. The legal incapacity of insane persons,
excepting during lucid intervals, when publicly recognized to be in
possession of their faculties, is declared. The questions of _lis
pendens_, _res judicata_, judgment by default, and vendors’
lien, are treated in much the same way as in modern treatises on
those subjects. The laws of inheritance, and the descent of estates,
are explained at great length, and with a minuteness corresponding
to their importance and effect upon social and domestic life. The
relations of husband and wife are exhaustively discussed; no marriage
was valid without a dowry, which was given by the husband; the amount
was proportioned to the wealth and position of the latter; and a sum
in excess of that established by law could not be bestowed through
affection, or exacted by improper influence. Patrimonial estates, in
the possession of widows, could not be alienated without the consent of
a council of relatives; a provision which was, for centuries, the law
in Portugal. In the penal legislation of the Code there is a curious
mingling of the barbarous and the civilized. The compounding of crimes
was permitted by law. The amount of damages to be assessed, like the
penalty for the offence, was estimated according to the dignity and
possessions of the culprit. The law of retaliation was sanctioned
and enforced in cases where the injury was of a personal character;
and, in support of this barbarous custom, the authority of the Bible
was constantly invoked. The inhumanity of the punishments imposed is
another striking indication of the survival of barbarism. Decapitation
was the ordinary sentence for capital crimes. The penalty for arson
was death by fire. Branding, maiming, scalping, and castration were
inflicted for offences not deemed of sufficient gravity to require the
imposition of the extreme penalty. Blinding, probably the most cruel of
all, though abolished by the Code of Justinian, had been retained by
the degenerate Greeks of the Byzantine Empire, from whom the Visigoths
acquired it. Scourging was frequently inflicted; the number of blows
varied from fifty to three hundred; they were almost always given in
public; and even a judge who had been guilty of misconduct in office,
was liable to the lash, symbolical at once of suffering and disgrace,
and only surpassed in infamy and horror by scalping with fire, or
decalvation. Torture, though authorized by law, was sparingly used.
Under the Roman system it could only be inflicted upon slaves; the
Visigoths, however, countenanced its exercise where the crime sought
to be discovered by its means was one implying great moral turpitude;
but it was solely employed as a method of eliciting evidence, and never
as punishment for crime. With a people so jealous of their liberties,
false imprisonment was naturally regarded as one of the greatest of
wrongs; while, on the other hand, few penalties are more common
than that involving the forfeiture of freedom. Informers, another
institution of Byzantine treachery and deceit, were encouraged, and,
where they were not participants in illegal acts, were substantially
rewarded for their suspicious and ignominious services. The recognition
of malice prepense, and criminal intent, especially in cases of
homicide, reveals a just perception of the responsibility attending the
commission of crime, rare, indeed, among nations just emerging from
barbarism, and quite at variance with other provisions asserting the
existence of witchcraft, charms, and incantations. Under the Visigothic
polity, a crime is expressly declared to die with its author, where
he underwent a capital penalty; no blame or reproach attached to his
family or his posterity, where they were not implicated in his guilt;
and the sweeping and unjust law of attainder, which confiscated the
property, and branded the descendants of an offender with infamy, for
centuries in force in England, was unknown to the more equitable and
indulgent system of the Visigoths.
We are ignorant of the details of the procedure followed by the
Visigothic tribunals. They had, however, their summonses and other
writs of various kinds, their pleadings, arguments, depositions,
appraisements, judicial opinions both oral and written, appeals and
executions. The proceedings were conducted with due solemnity; the
most assiduous care was exercised to insure the integrity of the
magistrate; the rules of propriety were strictly enforced; exhibitions
of contempt were punished with exemplary severity; and even a person
of the highest rank, if guilty of marked disrespect to the judge,
or participating in any unseemly demonstration, was unceremoniously
ejected by the bailiffs. By the enforcement of such measures, the
courts were not only invested with a proper dignity and importance, but
their impartiality was established and secured; and all, even including
the people of the lower classes, came to regard these tribunals
as fountains of equity, and the protection and mainstay of their
liberties. They were almost continually open; the judges had but few
hours of rest or recreation; they were made responsible, in both person
and property, for a proper determination of the causes brought before
them; their remuneration was fixed by law, and was independent even of
royal favor; and the crimes of oppression and bribery, when committed
by a magistrate, were made the subject of some of the most savage
enactments in the _Forum Judicum_, including degradation from
office, forfeiture of property, scourging, decalvation, exile, slavery,
and death.
The employment of compurgators under the Visigothic system was an
important and popular one. Their number is not stated, and does not
appear to have been limited, but originally it consisted of twelve. The
probable predecessor of our system of trial by jury, this institution
was derived from the Saxons, and was, without question, of remote
antiquity. The oath, under other systems of jurisprudence, rarely
employed in purgation of crime, was frequently resorted to by the
Visigothic magistracy, as it formerly had been under the primitive
legal procedure of the Germans. An accused party, if he had hitherto
borne a good character, was entitled to establish his innocence by this
means; a proceeding which could be confirmed and accompanied by the
affidavits of his friends, neighbors, and kinsmen, who, being persons
best acquainted with his character and habits, came into court, and
swore to their belief in his innocence. No testimony was offered in
their presence, and no arguments were made before them, as with the
modern jury. With more correct notions of the requisites and effect
of legal evidence than their German predecessors, the Visigothic
courts did not admit the intervention of compurgators, except under
circumstances where competent proof had failed to conclusively
establish the guilt of the accused. It is a curious fact that their
services were enlisted by criminals and litigants in the courts of
England until comparatively recent times. At first limited to criminal
prosecutions, their introduction was subsequently extended to various
civil actions, and especially to those brought for the recovery of
debts; and, recognized by the Canon Law, compurgators were sworn in
England as late as the reign of Elizabeth. This remarkable institution,
which bears so plainly the impress of ecclesiastical influence,
appealing to the piety and superstitious fears of the ignorant,
evinces, by the surprising vitality which it exhibited, its peculiar
adaptation to the purposes of legal procedure in the age when it
prevailed.
While members of the sacerdotal order were, to a certain extent,
subject to secular justice under the Visigothic polity, the reverence
with which they were universally regarded, the great power they exerted
over the institutions of the kingdom, and their superior intelligence,
which with the ignorant of all classes, invested them with mysterious
powers, rendered their appearance in courts of law most infrequent.
The history of the Visigothic monarchy, especially after its adoption
of Catholicism in 587, is, therefore, as has already been remarked,
closely interwoven with that of the Visigothic Church. The Crown
possessed little real authority. The complete and universal municipal
organization, instituted by the Romans, had disappeared with the
Gothic occupation. Civil and judicial officers, although appointed by
the Crown, were subject to ecclesiastical supervision; not only in
the parish and the diocese, but in the tribunals of justice, in the
most intimate relations of domestic life, in the determination and
settlement of secular disputes, and even in the presence of the throne.
The influence of the priest increased in the same ratio in which that
of the soldier declined. It reached its climax at the time of the
Saracen invasion, when, to all but the most discerning eye, the rule of
the Church seemed destined to endure through many centuries, and its
civil and political power appeared impregnable. The illusory character
of this apparent greatness was soon to be exhibited. Two years after
the last of the Gothic kings ascended the throne, the Moorish armies
were in possession of the Spanish Peninsula.
The enactments of the Visigothic Code, from their promulgation to the
present day, have been never entirely abrogated by the legislative
powers of Spain, and, as the foundation of the national judicature,
many of its precepts and its rules still maintain their original
force and power in the legal and ecclesiastical tribunals of the
Spanish Peninsula. During the Moslem domination, their authority
was unquestioned in the different Christian kingdoms of the North.
The voluminous compilation, known as _Las Siete Partidas_,
published by Alfonso el Sabio in 1348, was largely borrowed from the
_Forum Judicum_. Charles III. in 1788, expressly declared that
the provisions of the latter had never been repealed by subsequent
statutes, and ordered that they should prevail in a contest involving
the law of inheritance, where the property of a deceased monk was
claimed both by his monastery and his relatives, in the royal chancery
court of Granada. Not only are some of these laws still recognized
as binding in the Peninsula, but they were long used in Southern
France, and the capitularies of the early kings of that country bear
unmistakable internal evidence of their derivation from this same
source.
The Castilian version of the Visigothic Code, notwithstanding its
coarseness, its ambiguities, and its errors, is still most useful for
the purposes of the philologist and the historian. It displays the
beginning and the development of the noble and elegant Spanish idiom,
from its origin, full of barbarisms, down to its perfection of to-day;
from the crude and awkward expressions of the chronicle and the missal,
to the perspicuous and polished diction of Calderon, Mendoza, and
Cervantes. We detect in its labored and awkward sentences the corrupt
Latin of the times when classic purity was lost, and the Romance
languages had not yet been formed; an epoch of transition, abounding in
abbreviated words and crabbed expressions, curious etymology, phrases
constructed with little regard to the rules of syntax, incorrect
quotations from Scripture, provincial peculiarities of construction
and nomenclature, archaic terms, whose meanings are now forgotten,
words of purely Arabic derivation, the names of animals and objects,
then, for the first time, introduced into Castilian,--much of it
confusing, yet all instructive in revealing the customs and prejudices
of a people, and depicting the various gradations accompanying the
formation and growth of a language.
Such are our obligations, legal, historical, ethical, philological,
and economic, to the Visigothic Code. Its harsh, inelegant style,
its repetitions and absurdities, its incoherence, its superstitions,
and its savage treatment of heretics, may well be forgotten in the
services it has rendered to mankind. All modern systems of government
are infinitely indebted to it, for it forms to-day the basis of the
jurisprudence of a large portion of the civilized nations of the
earth. A great number of the principles it inculcates would reflect
credit upon any legal treatise, human or divine. Its translation into
Castilian aided, more than any one literary work, to invest with
beauty, grace, and symmetry, what is now one of the most magnificent
and sonorous languages spoken by the tongue of man. It has delineated,
with a fidelity not to be found in tradition or chronicle, the state
of a society, remarkable in its characteristics, still devoted to
barbarian customs, yet evincing sentiments and impulses usually only
to be encountered under conditions of the most advanced moral and
intellectual development.
Prefixed to the Code, yet clearly indicating by their position and
contents that they have properly no more right to be included in it
than scores of other products of ecclesiastical legislation to be
encountered in the canonical compilations and ancient chronicles
of Spain, are ten pages of decrees and fragmentary ordinances of
various Councils, purporting to relate to the election of kings and
their duties, but which, in reality, are mainly taken up by edifying
homilies, invocations of the Deity, and fulminations against such as
venture to dispute the divine authority of the Church. These pages
fairly swarm with repetitions, anachronisms, and absurdities; their
diction is far more barbarous and perplexing than even that of the
Code itself; and their general features strongly suggest that they may
have been inserted by some ignorant monk, zealous for the superior
privileges of his order. For these reasons, as well as because much of
what they contain is repeated in the body of the work, they have been
omitted.
The translation of this ancient body of laws has been a laborious
undertaking, and one to which little assistance has been afforded by
the obscure Castilian version. Equivalents for many of the Latin terms
do not exist in English. Some passages are of doubtful significance,
others absolutely unintelligible. In not a few instances, the text
is so involved that only paraphrases can be employed. Despite these
serious obstacles, in the treatment of the subject, I have endeavored
to observe, as far as practicable, the spirit of the original, and
have preferred to render the words and expressions literally--where
this can be done--rather than to make use of the terms of modern legal
phraseology.
PHILADELPHIA, May 1, 1908.
CONTENTS.
BOOK I.
CONCERNING LEGAL AGENCIES.
TITLE I.--_The Lawmaker._
Page
I. What the Method of Making Laws Should Be 1
II. How the Lawmaker Should Act 2
III. What Should be Required of the Lawmaker 2
IV. What the Conduct of the Lawmaker Should Be in his
Daily Life 2
V. How the Lawmaker Should Impart Advice 3
VI. What Manner of Speech the Lawmaker Should Use 3
VII. How the Lawmaker Should Act in Rendering Judgment 3
VIII. How the Lawmaker Should Comport Himself in Public
and Private Affairs 3
IX. What Instruction it is Fitting That the Lawmaker
Should Give 4
TITLE II.--_The Law._
I. What the Lawmaker Should Observe in Framing the Laws 5
II. What the Law Is 5
III. What the Law Does 5
IV. What the Law Should Be 5
V. Why the Law is Made 6
VI. How the Law Should Triumph over Enemies 6
BOOK II.
CONCERNING THE CONDUCT OF CAUSES.
TITLE I.--_Concerning Judges, and Matters to be
Decided in Court._
I. When Amended Laws Should come in Force 11
II. The Royal Power, as well as the Entire Body of the
People should be Subject to the Majesty of the Law 12
III. It is Permitted to No One to be Ignorant of the Law 13
IV. The Business of the King shall First be Considered,
then that of the People 13
V. How the Avarice of the King should be Restrained in
the Beginning, and How Documents Issued in the
Name of the King should be Drawn Up 14
VI. Concerning Those who Abandon the King, or the
People, or their Country, or who Conduct themselves
with Arrogance 17
VII. Of Incriminating the King, or Speaking Ill of Him 19
VIII. Of Annulling the Laws of Foreign Nations 20
IX. No One shall presume to have in his Possession another
Book of Laws except this which has just been
Published 20
X. Concerning Feast Days and Festivals, during which No
Legal Business shall be Transacted 21
XI. No Cause shall be Heard by the Judges which is not
Sanctioned by the Law 22
XII. When Causes have once been Determined, at no Time
shall They be Revived, but They shall be Disposed
of according to the Arrangement of this Book; the
Addition of Other Laws being One of the Prerogatives
of the King 23
XIII. It Shall be Lawful for No One to Hear and Determine
Causes except Those Whom either the King, the
Parties by Voluntary Consent, or the Judge, shall
have Invested with Judicial Powers 23
XIV. What Causes shall be Heard, and to what Persons
Causes shall be Assigned for a Decision 24
XV. Judges Shall Decide Criminal as well as Civil Causes 24
XVI. Concerning the Punishment of Those who Presume to
Act as Judges, Who have not been Invested with
Judicial Power 24
XVII. Concerning Those who Ignore the Letters of the Judge,
or His Seal, Calling Them to Court 25
XVIII. Where a Judge Refuses to Hear a Litigant, or Decides
Fraudulently or Ignorantly 27
XIX. Where a Judge, either through Convenience to Himself
or through Want of Proper Knowledge, Decides
a Cause Improperly 28
XX. Where a Judge, either through Deceit or Cunning,
imposes Needless Costs upon Either or Both the
Parties to a Suit 29
XXI. What, First of All, a Judge should be Familiar With,
in order that he May Understand a Case 29
XXII. Where the Integrity of a Judge is said to be Suspected
by Anyone of Honorable Rank, or where a Judge
presumes to render a Decision Contrary to Law 30
XXIII. How a Judge should render Judgment 31
XXIV. Concerning the Emoluments and the Punishment of
the Judge, and of the Bailiff 32
XXV. Everyone who is Invested with Judicial Power shall
Legally bear the Title of Judge 33
XXVI. Every Bond which is Exacted by a Judge, after an
Unjust Decree, shall be held Invalid 34
XXVII. An Unjust Decree, or an Unjust Interpretation of the
Law, Prompted by Fear of the Throne, or Made by
Order of the King, shall be Invalid 34
XXVIII. Concerning the Power Conferred upon Bishops, of
Restraining Judges who Decide Wrongfully 35
XXIX. The Judge, when Inquired of by a Party, should be
able to give a Reason for his Decision 35
XXX. Concerning the Punishment of Judges who Appropriate
the Property of Others 36
XXXI. Concerning Those who Treat the Royal Order with
Disdain 36
XXXII. How the Judge should Inquire into Causes by the
Ordeal of Hot Water 37
TITLE II.--_Concerning Causes._
I. No One can Refuse to Answer because the Plaintiff
Never Presented his Claim to Him 38
II. The Court must be Disturbed by no Clamor or Tumult 38
III. Where there are Many Litigants, Two may be Chosen
who shall have Power to carry on the Suit 39
IV. Both Parties may be Compelled by the Judge or the
Bailiff, to be Present in Court on the Day when the
Case is to be Heard 39
V. Those whose Affairs have been brought before a
Tribunal for a Decision, shall under no Circumstances
enter into a Compromise before the Case
has been Decided 40
VI. Both Parties shall be Required to Furnish Testimony 41
VII. Concerning the Journey which Anyone Compels an
Innocent Person to Make 42
VIII. Where Anyone Residing in the District of one Judge
has a Cause of Action against a Party Living in the
District of another Judge 42
IX. Concerning Those who Venture to Defend the Suits of
Others 44
X. No Freeman shall Refuse to Answer the Slave of
another in Court 45
TITLE III.--_Concerning Constituents and Commissions._
I. Princes and Bishops should not Conduct their Cases
in Court in Person, but through their Subjects or
Subordinates 47
II. The Judge must inquire of a Litigant, whether the
Suit brought by Him is his Own, or that of Another 48
III. He who cannot conduct his Cause Himself must give
Written Authority to his Attorney 48
IV. Torture shall in no Case be inflicted upon Persons of
Noble Birth who are acting as Representatives of
Others; and, In what way, a Freeman of the Lower
Class, or a Slave, may be subjected to Torture 49
V. If He who has Appointed an Attorney Suffers Delay,
He can revoke his Commission 50
VI. It shall not be Lawful for a Woman to Act as an
Attorney, but She may Conduct her Own Case in
Court 50
VII. The Constituent shall receive the Benefit, and bear the
Loss, resulting from Proceedings Instituted by his
Attorney 51
VIII. If an Attorney should die, his Heirs shall be entitled
to his Fees 51
IX. What Persons those in Power, and those that are
Poor, may appoint to Conduct their Cases 52
X. Those who have Charge of the Royal Treasury, when
the Suit is brought for its Benefit, have authority
to appoint whom they wish to represent them 52
TITLE IV.--_Concerning Witnesses and Evidence._
I. Concerning Persons who are not Permitted to Testify 54
II. Witnesses shall not Testify except under Oath; Where
both parties offer Witnesses which shall be Believed;
and Where a Witness Testifies Falsely 54
III. Where a Witness Testifies Orally, and Written Evidence
Contradicts Him 54
IV. A Slave shall not be Believed unless he Belongs to the
Crown; and When Royal Slaves shall be Believed 56
V. A Witness shall not give his Testimony in Writing, but
Orally, and How Testimony should be Given 57
VI. Concerning Those who give False Testimony 58
VII. Concerning Those who are Proved to have given False
Testimony; and Concerning the Space of Six
Months in which a Witness may be Declared Infamous.
It shall not be Lawful to give Testimony
concerning One who is Dead 58
VIII. Concerning Those who Induce Others to give False
Testimony, or Encourage the Slaves of Others to
Seek their Liberty 60
IX. In what Causes Slaves can Testify 61
X. Concerning Those who Bind Themselves in Writing,
not to give True Testimony in the Cause of Others 62
XI. At what Age Minors can Testify 62
XII. A Near Relative or a Kinsman of a Party to a Suit,
cannot give Testimony against a Stranger 62
TITLE V.--_Concerning Valid and Invalid Documents and How Wills
Should be Drawn Up._
I. What Documents are Valid in Law 64
II. No Witness shall Testify as to the Contents of a Document
of which He is Ignorant 64
III. Concerning the Drawing Up of Contracts, and Other
Legal Documents 65
IV. Neither Children, nor Other Heirs, shall contest the
Final Disposition of Property by their Ancestors 65
V. Concerning the Penalties to which those are Liable
who attempt to Repudiate their Written Contracts 65
VI. Contracts and Agreements made by Slaves are Invalid,
unless Ordered by Their Masters 65
VII. Concerning Dishonorable and Illegal Contracts 66
VIII. No One shall be Liable in Person or Property, under
the Terms of any Contract, where Deception has
been Practised; nor shall He be Liable to any
Penalty provided by the same 66
IX. Every Obligation, or Contract, which has been Extorted
by Force, or Fear, shall be Void 66
X. What Contracts entered into by Minors shall be Valid 66
XI. How Wills shall be Drawn Up and Proved 67
XII. How the Wills of those who Die during a Journey shall
be Proved 68
XIII. A Will must be Published in the Presence of a Priest,
or of Witnesses, within Six Months 69
XIV. Concerning the Comparison of Handwriting where
Doubt attaches to any Document 69
XV. Concerning Holographic Wills 70
XVI. Concerning the Comparison of Documents, and the
Infliction of Penalties prescribed by Wills 70
XVII. No Testator shall be Permitted to Dispose of Property
in One Way, in the Presence of Witnesses, and in
Another by a Written Will 72
BOOK III.
CONCERNING MARRIAGE.
TITLE I.--_Concerning Nuptial Contracts._
I. Marriage shall not be Entered Into without a Dowry 75
II. It shall be as Lawful for a Roman Woman to Marry a
Goth, as for a Gothic Woman to Marry a Roman 76
III. Where a Girl Marries against the Will of her Father,
while she is Betrothed to Another 76
IV. When a Gift is made by way of Pledge, a Nuptial
Contract cannot be Rescinded 77
V. Women Advanced in Years shall not Marry Young Men 77
VI. What Property the Dowry shall consist of 79
VII. The Father shall Exact, and Keep, the Dowry of his
Daughter 79
VIII. In case of the Death of the Father, the Disposition of
the Children of both Sexes, in Marriage, shall belong
to the Mother 81
IX. Where Brothers Defer the Marriage of their Sister, or
Where a Girl Marries Beneath her Station 81
X. Where the Items of a Dowry, relating to any kind of
Property, are reduced to Writing, it shall not be
Contested 82
TITLE II.--_Concerning Unlawful Marriages._
I. Where a Woman Marries within a Year after the
Death of her Husband 83
II. Where a Freeborn Woman Marries a Slave, or her own
Freedman 83
III. Where a Freeborn Woman Marries the Slave of
Another, or a Freeborn Man the Female Slave of
Another 84
IV. Where a Freedwoman, or a Freedman, Marries the
Slave of Another 85
V. Where Anyone gives in Marriage his Slave, of Either
Sex, to the Slave of Another 85
VI. Where a Woman contracts a Second Marriage in the
Absence of her Husband 86
VII. Where a Master Marries one of his Slaves to a Freewoman
declaring him to be a Freeman 86
VIII. Where a Freewoman Marries without the Consent of
her Parents 87
TITLE III.--_Concerning the Rape of Virgins, or Widows._
I. Where a Freeman carries off a Freewoman by Force,
he shall not be permitted to Marry her, if she was a
Virgin 88
II. Where Parents remove their Daughter from the Power
of a Ravisher 89
III. Where the Parents of a Girl, who has been Betrothed,
consent that she should be Carried Away by Another 90
IV. Where Brothers, either during the Life of their Father,
or after his Death, consent that Anyone should
Carry Away their Sister by Force 90
V. Where Anyone Carries Away by Violence a Woman
who was Betrothed to Another 90
VI. Where a Ravisher is Killed 91
VII. Within what Time it is Lawful to Prosecute a Ravisher;
and Whether any Marriage Contract can be entered
into with Him by the Girl or her Parents 91
VIII. Where a Slave carries off a Freewoman by Force 92
IX. Where a Slave carries off a Freedwoman by Force 92
X. Where a Slave carries off the Female Slave of Another
by Force 92
XI. Concerning those who Deceive Girls, or the Wives of
Others, or Widows; and Concerning those who
Compel by Force, and without the Royal Command,
any Freeborn Girl or Widow to take a Husband 93
XII. Concerning Freemen and Slaves who are Proved to
have been Implicated in the Crime of Rape 93
TITLE IV.--_Concerning Adultery._
I. Where a Woman Commits Adultery, with or without
the Connivance of her Husband 95
II. Where a Girl or a Woman who has been Betrothed, is
found Guilty of Adultery 95
III. Concerning the Adultery of a Wife 96
IV. Where an Adulterer, along with an Adulteress, are
Killed 96
V. Where her Father, or her Relatives, Kill a Girl who
has been Guilty of Adultery in their House 96
VI. It is not Lawful for Slaves to put Persons to Death
who are taken in Adultery 97
VII. Where a Girl, or a Widow, goes to the House of
Another, in order to Commit Adultery, and the
Man should wish to Marry Her 97
VIII. Where a Freeborn Woman commits Adultery with
Anyone 97
IX. Where a Freeborn Woman commits Adultery with the
Husband of Another 98
X. Slaves of Both Sexes may be Tortured to Reveal the
Adultery of their Masters 98
XI. Whether it shall be Lawful to set a Slave at Liberty,
in order to Conceal the Crime of Adultery 98
XII. Concerning the Property of Persons who have Committed
Adultery 99
XIII. Concerning those Persons who have a Right to bring
Accusations of Adultery, and what Proof of the
Crime should be Made 100
XIV. Where a Freedman, or a Slave, has been Convicted of
having committed Adultery, with Violence, upon a
Freeborn Virgin, or Widow 101
XV. Where a Freeman, or a Slave, without the Knowledge
his Master, commits Adultery with the Female
Slave of Another 102
XVI. Where a Female Slave is proved to have committed
Adultery with Another by Force 102
XVII. Concerning Freeborn Women, or Female Slaves, of
Bad Character, and Where Judges Refuse to
Investigate, or Punish their Crimes 102
XVIII. Concerning the Impurity of Priests and other Ministers
of Religion 104
TITLE V.--_Concerning Incest, Apostacy, and Pederasty._
I. Concerning Incestuous and Adulterous Marriages in
General 106
II. Concerning Incestuous and Adulterous Marriages
and Debauchery, either with Holy Virgins, or with
Widows and other Women while doing Penance 107
III. Concerning Men and Women who Illegally Assume
the Tonsure and Dress of Religious Orders 108
IV. Concerning the Restraint of Fraud Peculiar to Widows 109
V. Concerning Pederasty 110
VI. Concerning Sodomy, and the Manner in which the
Law should be Enforced 111
VII. Concerning Adultery committed with the Concubine of
a Father or a Brother 111
TITLE VI.--_Concerning Divorce, and the Separation of Persons who
have been Betrothed._
I. Where a Woman, justly or unjustly, is Separated from
her Husband 113
II. There shall be No Divorce between Married Persons 114
III. There shall be No Divorce between Persons who are
Betrothed 116
BOOK IV.
CONCERNING NATURAL LINEAGE.
TITLE I.--_Concerning the Degrees of Relationship._
I. The Nature of the First Degree 117
II. The Affinity of the Second Degree 117
III. The Relationship of the Third Degree 118
IV. The Consanguinity of the Fourth Degree 118
V. The Origin of the Fifth Degree 118
VI. The Limits of the Sixth Degree 119
VII. The Persons in the Seventh Degree who are not Mentioned
by the Laws 119
TITLE II.--_Concerning the Laws of Inheritance._
I. Brothers and Sisters shall Share Equally in the
Inheritance of their Parents 121
II. The Children shall Come First in the Order of
Succession 121
III. Where there are no Heirs in the Direct Line, Collateral
Heirs shall Inherit the Property 121
IV. Who shall Succeed to the Property of Those who have
left no Written Wills, or have made no Disposition
of their Possessions in the Presence of Witnesses 121
V. Concerning Inheritance by Brothers and Sisters, and
by such of these as are not descended from the
same Parents 122
VI. Where he who Dies leaves Grandfathers or
Grandmothers 122
VII. Where he who Dies leaves Aunts 122
VIII. Where he who Dies leaves Nephews 122
IX. A Woman shall be entitled to a Share in an Entire
Inheritance 123
X. As a Woman has a Right to a Share of an Entire
Inheritance, so he who is next in Succession shall
inherit the Remainder of the Property 123
XI. Concerning the Inheritance of Husband and Wife,
Respectively 123
XII. Concerning the Inheritance of Property from Clerks
and Monks 123
XIII. After the Death of their Mother, Children shall remain
under Control of their Father; and What Disposition
he shall make of their Property 123
XIV. Where a Mother remains a Widow, she shall have an
Equal Portion of the Inheritance with her Children;
and How a Mother ought to Dispose of the Property
of her Children 125
XV. No Wife can lay Claim to what her Husband has
Gained by the Labor of her Slaves 126
XVI. Concerning such Property as the Husband and Wife
together have Accumulated during their Married
Life 126
XVII. In what way a Child may Inherit Property 127
XVIII. How the Parents of a Child can Inherit from Him 128
XIX. Concerning Posthumous Children 129
XX. He who leaves no Children, has full Power to Dispose
of his Property as he Pleases 130
TITLE III.--_Concerning Wards and Their Guardians._
I. What a Minor Is 131
II. From what date Time is to be Computed in Bringing
Lawsuits relating to Minors 131
III. How the Guardianship of Wards should be Entered
upon; what Portion of their Property they shall
Receive, and what Portion shall be given to their
Guardians 132
IV. Guardians shall have no Right to Exact from Wards
in their Charge any Instruments in Writing whatever 133
TITLE IV.--_Concerning Foundlings._
I. Where anyone Casts Away, or Abandons, a Freeborn
Child, he shall Serve as its Slave 135
II. Where a Male or Female Slave shall be Proved to
have Cast Away a Child, with or without the
Knowledge of his or her Master 135
III. What Compensation for Support anyone shall Receive
for the Bringing up of a Child Committed to his
Care by its Parents 136
TITLE V.--_Concerning Such Property as is Vested by the Laws of
Nature._
I. Concerning the Disinheriting of Children; and What
Disposition Parents should make of their Property 137
II. What Part of her Dowry a Woman has a Right to
Bequeath 139
III. What Property Parents should Bestow upon their
Children, at the Time of their Marriage 140
IV. Concerning Children Born of Different Parents; and
What Distinctions Parents may Make in the Disposition
of their Estates 141
V. Concerning such Property as Children may have
Acquired during the Lives of their Parents 142
BOOK V.
CONCERNING BUSINESS TRANSACTIONS.
TITLE I.--_Ecclesiastical Affairs._
I. Concerning Donations to the Church 143
II. Concerning the Preservation and Restoration of Property
Belonging to the Church 144
III. Concerning Sales and Gifts of Church Property 144
IV. Concerning Church Property in Charge of Those
Devoted to the Service of the Church 145
V. Concerning the Repairs of Churches, and Divers Other
Matters 145
VI. Concerning the Arbitrary Conduct of Bishops 147
VII. Emancipated Slaves of the Church, who are still
Bound to Render it Service, shall not be Permitted
to Marry Persons who are Freeborn 150
TITLE II.--_Concerning Donations in General._
I. A Donation Extorted by Violence is Void 152
II. Concerning Royal Donations 152
III. Concerning Property Given to a Husband or a Wife
by the King 152
IV. Concerning Property, in Addition to the Dowry, Given
to a Wife by her Husband 153
V. Concerning Property Given to a Husband by his Wife;
and Where a Wife has been Convicted of Adultery 153
VI. Concerning Property Donated Verbally, or Conveyed
by Instruments in Writing 154
VII. Concerning Gifts Bestowed upon one Another by
Husband and Wife 155
TITLE III.--_Concerning the Gifts of Patrons._
I. Where Anyone who has been Placed under the Control
of Another, or of the Son of that Person,
Deserts either his Patron, or the Children of the
Latter 156
II. Concerning Arms given to Bailiffs who have been
Appointed for the Defence of Anyone, and the
Acquisitions of said Bailiffs 158
III. Concerning Property Acquired through the Appointment
of a Patron, or which has been Donated by Him 158
IV. Concerning Property Accepted and Acquired through
the Office of Patron 158
TITLE IV.--_Concerning Exchanges and Sales._
I. What Constitutes a Valid Exchange, and what a Valid
Purchase 160
II. If the Vendor is not a Person of Good Character, he
must give a Surety 160
III. Any Sale made under Compulsion shall be Void 160
IV. In Case the Price should not be Paid, after Earnest
Money has been Given 160
V. Where only Part of the Price is Paid 161
VI. Where Fraud is Committed in Stating the Price of
whatever is Sold 161
VII. Where Anyone says that he Sold his Property for Less
than it was Worth 161
VIII. Concerning Those who Sell, or Give Away, the Property
of Others 162
IX. It shall not be Lawful to Sell, or Give Away, Property
whose Ownership is in Dispute 162
X. Where a Freeman Allows Himself to be Sold 162
XI. Concerning Free Men and Free Women sold by Slaves
or Freemen 163
XII. It shall be Illegal for Parents to Sell their
Children or, by any Contract whatsoever, to Place
Them in the Power of Others 163
XIII. Concerning Sales by Slaves 164
XIV. Where a Slave, who has been Sold, Accuses his Former
Master of Crime 165
XV. A Master may Claim the Property of a Slave whom
he has Sold 165
XVI. Whether a Slave may be Redeemed with his own
Private Property 166
XVII. No One, against his Will, shall be Compelled to Sell
his Slaves 166
XVIII. Where a Slave, on Account of a Crime he has Committed,
is Transferred to the Possession of Another 167
XIX. Concerning Property Belonging to Private Persons,
and to the Courts, which may not be Alienated 167
XX. Where Anyone Sells or Gives Away Property, whose
Possession should first have been Transferred by
Judicial Decree 169
XXI. Of Slaves Captured and Sold by the Enemy 169
XXII. For what Price this Book shall be Bought 169
TITLE V.--_Concerning Property Committed to the Charge of,
or Loaned to, Another._
I. Concerning Animals Hired to Another 171
II. Concerning Animals Loaned for the Purpose of Labor 172
III. Concerning Things which have been Loaned, and
afterwards Destroyed by Fire, or Lost by Theft 172
IV. Concerning Lost Money, and the Interest on the Same 173
V. Concerning Property Committed to the Charge of
Another, and Lost by Accident at Sea 173
VI. Concerning Property Entrusted to a Slave without his
Master’s Knowledge 174
VII. Where a Slave Fraudulently Demands Property Entrusted
by his Master to Another 174
VIII. Concerning Legal Interest 175
IX. What shall be Paid for the Use of Fruits of the Soil 175
X. Who are Entitled to Wills, or Instruments in Writing,
which have been Entrusted to the Keeping of Anyone 176
TITLE VI.--_Concerning Pledges and Debts._
I. Where Articles are not Pledged 177
II. Where Pledges are Deposited, and afterwards Stolen 177
III. Where Articles are Pledged as Security for Debts 177
IV. Where a Pledge is not Restored when the Debt is Paid 178
V. Where a Person is Liable for many Debts, or has Committed
many Crimes 179
VI. In what way the Debt of a Person who is Dead, or any
Injury he has Committed, shall be Inquired into 180
TITLE VII.--_Concerning the Liberation of Slaves, and Freedmen._
I. Where Slaves are Liberated, either by Instruments in
Writing, or in the Presence of Witnesses 182
II. Where a Slave Belonging to One, or to Several Persons,
is set at Liberty 182
III. Concerning Those who Declare that they are Free 183
IV. Whether he who is enjoying Liberty, can be Returned
to Slavery 183
V. Whether he who is sought to be Returned to Slavery,
can be Deprived of any of his Property 183
VI. Whether he who has been Declared to be Free by his
Master, in Court, can be again Reduced to Slavery,
on the Demand of said Master 184
VII. Where anyone, Influenced by Fear, Asserts that he is
a Slave 184
VIII. Where a Freeman is Claimed as a Slave; or Where a
Slave Declares Himself to be Free 184
IX. For what Reasons Freedom, once Given, shall be Revoked 185
X. Where a Freedman Inflicts Injury upon him who Gave
him his Freedom 185
XI. A Freedman shall not be Permitted to give Testimony
against his Former Master, or against the Children of
the Latter 186
XII. Freedmen shall not be Permitted to Testify in Court 186
XIII. Concerning the Disposition of the Property of a Person
who has been set Free, should he Die without
Leaving Legitimate Children 186
XIV. Concerning the Conditions Imposed by a Master, where
Slaves are Liberated by an Instrument in Writing 187
XV. Concerning the Liberation of Slaves belonging to the
Crown 188
XVI. Concerning the Property of Slaves belonging to the
Crown, who have been Liberated 188
XVII. Neither Freedmen, nor their Descendants, shall either
Marry into, or Act Insolently towards, the Family of
their Patron 189
XVIII. Freedmen who have Entered any Religious Order, shall
not be Returned to the Service of their Masters 190
XIX. In what manner Royal Freedmen and their Descendants
shall Defend the King, while Serving in the
Army; and with whom Those in the Public Service
shall March 190
XX. Concerning Freedmen who are Guilty of Transgressions 191
BOOK VI.
CONCERNING CRIMES AND TORTURES.
TITLE I.--_Concerning the Accusers of Criminals._
I. A Slave, Accused of a Crime, may be Demanded of
his Master by the Officials of the District 193
II. For what Offences, and in what Manner, Freeborn
Persons shall be put to the Torture 194
III. For what Offences, and in what Manner, Slaves, of
Either Sex, shall be put to the Torture, on account
of the Crimes of their Masters 196
IV. For what Offences, and in what manner, a Slave, or a
Freedman, shall be Tortured 197
V. In what way an Accusation shall be Brought to the
Notice of the King 200
VI. How Kings should Practise the Duties of Mercy 201
VII. He Alone shall be Considered Guilty who Committed
the Crime 201
TITLE II.--_Concerning Malefactors and their Advisers,
and Poisoners._
I. Where a Freeborn Man Consults with a Soothsayer
Concerning the Health, or the Death of Another 203
II. Concerning Poisoners 204
III. Concerning Malefactors and their Advisers 204
IV. Concerning Those who are Guilty of any Illegal Acts,
or any Injury, towards Men, Animals, or any Kind of
Property Whatsoever 205
TITLE III.--_Concerning Abortion._
I. Concerning Those who Administer Drugs for the Production
of Abortion 206
II. Where a Freeborn Man Causes a Freeborn Woman to
Abort 206
III. Where a Freeborn Woman Causes another Freeborn
Woman to Abort 207
IV. Where a Freeborn Man Produces Abortion upon a
Slave 207
V. Where a Slave Produces Abortion upon a Freeborn
Woman 207
VI. Where a Slave Produces Abortion upon a Female
Slave 207
VII. Concerning Those who Kill their Children before, or
after, they are Born 207
TITLE IV.--_Concerning Injuries, Wounds, and Mutilations,
Inflicted upon Men._
I. Concerning the Injury of Freemen and Slaves 209
II. Concerning Insolent Persons and their Acts 210
III. Concerning the Law of Retaliation, and the Amount
to be Paid in Lieu of the Enforcement of said Law 211
IV. Where a Person Deprives a Traveler of his Liberty,
against the Will of the Latter, and with Intent to
do him Injury 214
V. He who Violates the Law by Inflicting Injury upon
Another, shall undergo the same Punishment which
he Himself Inflicted 215
VI. He shall not be Considered Guilty who Struck Another,
when the Latter was about to Strike Him 215
VII. Where a Slave Insults a Freeborn Person 216
VIII. Where one Freeborn Person Strikes Another 216
IX. Where the Slave of Another is Mutilated by a Freeborn
Person 216
X. Where a Slave Strikes a Freeborn Person 217
XI. Where One Slave Mutilates Another Slave 217
TITLE V.--_Concerning Homicide._
I. Where One Kills Another without Knowing it 218
II. Where One Kills Another without Seeing Him 219
III. Where One, being Pushed, Kills Another 219
IV. Where One, Seeking to Strike Another, Kills a Third
Person 219
V. Where One is Killed while Interfering in a Quarrel 220
VI. Where One, Intending to Inflict a Slight Injury, Kills
Another 220
VII. Where One, in Sport, or Recklessly, Kills Another 220
VIII. Where One Kills Another through Immoderate Punishment 221
IX. Where a Freeman Kills a Slave by Accident 221
X. Where a Slave Kills a Freeman by Accident 221
XI. Where One Man Intentionally Kills Another 221
XII. No Master shall Kill his Slave without Good Reason;
and Where One Freeman Kills Another 222
XIII. No One shall Deprive a Male or Female Slave of a Limb 225
XIV. Any Person may bring an Accusation of Homicide 226
XV. Both Relatives and Strangers have a Right to Accuse
a Person of Homicide 227
XVI. Where a Homicide Takes Refuge in a Church 227
XVII. Concerning Parricides, and the Disposition of their
Property 228
XVIII. Concerning Those who Kill Others Related to Them
by Blood 229
XIX. Where One Blood-Relative is Accidentally Killed by
Another 230
XX. Where One Slave Kills Another by Accident 230
XXI. Concerning those who Destroy their Souls by Perjury 230
BOOK VII.
CONCERNING THEFT AND FRAUD.
TITLE I.--_Concerning Informers of Theft._
I. Concerning Informers and Persons who give Information
of Theft 233
II. A Slave, Acting as Informer, must not be Believed,
unless the Testimony of his Master is also Given 234
III. Where the Informer Knew of the Commission of the
Theft 284
IV. Concerning the Compensation of an Informer 235
V. Where an Innocent Person is Accused of Crime by an
Informer 235
TITLE II.--_Concerning Thieves and Stolen Property._
I. He who is Searching for Stolen Property must Describe
it 238
II. Where a Slave Commits a Theft Before or After he
has Received his Freedom 238
III. Where a Slave, who has Become the Property of
Another Master, Commits an Unlawful Act 238
IV. Where a Freeman Commits a Theft in Company with
the Slave of Another Person 239
V. Where a Master Commits a Theft in Company with his
Slave 239
VI. Where a Slave, Belonging to Another Person, is
Instigated by Anyone to the Commission of
Unlawful Acts 239
VII. Concerning Those who Knowingly Associate with
Thieves 240
VIII. Where Anyone, Ignorantly, Buys Stolen Property of a
Thief 240
IX. Where Anyone, Knowingly, Buys Stolen Property of a
Thief 241
X. Concerning Money, and Other Property, Stolen from
the King 241
XI. Concerning the Stealing of Bells from Cattle 241
XII. Concerning the Theft of Mill Machinery 242
XIII. Concerning the Punishment of a Thief 242
XIV. A Thief, when Taken, shall be Brought Before the
Judge; and Where a Freeman Commits a Theft in
Company with a Slave, Both shall Undergo the
Same Penalty 242
XV. Where a Thief, Defending Himself with a Sword, is
Killed 243
XVI. Where a Thief is Killed at Night, while he is Being
Taken 243
XVII. Concerning Property Injured or Destroyed; and the
Reparation to be Made for what has been Damaged
or Stolen 243
XVIII. Concerning Property Rescued from Shipwreck 243
XIX. Concerning the Property and the Heirs of Thieves 244
XX. Concerning Those who Rescue Thieves and Other
Criminals, after their Capture 244
XXI. Where a Slave Steals from his Master, or from a
Fellow-Slave 245
XXII. Within what Time, after his Arrest, a Thief must be
Brought Before the Judge 245
XXIII. Where Anyone Secretly Kills an Animal Belonging to
Another 246
TITLE III.--_Concerning Appropriators and Kidnappers
of Slaves._
I. Where Anyone Seizes the Slave of Another 247
II. Where a Freeman is Convicted of Having Stolen the
Male or Female Slave of Another 247
III. Concerning Kidnapped Children of Freeborn Persons 248
IV. Where one Slave Kidnaps Another Belonging to a
Person not his Master 248
V. Where a Slave, at the Command of his Master, Kidnaps
a Freeborn Person 249
VI. Where a Slave, without the Knowledge of his Master,
Kidnaps a Freeborn Person 249
TITLE IV.--_Concerning the Custody and Sentence of
Condemned Persons._
I. Where a Judge is Asked to Punish Crime, and is
Afterwards Treated with Contempt 250
II. The Governor of the City shall Aid the Judge in the
Arrest of Persons Accused of Crime 250
III. Where a Person Breaks out of Prison, or Influences the
Jailer for that Purpose 251
IV. Concerning the Compensation which may be Received
from those in Custody 251
V. Where a Judge who is Lenient to Offenders Against
the Law, Releases a Criminal 252
VI. Concerning the Punishment of a Judge who Improperly
Discharges a Criminal 252
VII. A Person Guilty of Crime shall receive the Sentence of
the Law not Secretly, but in Public 252
TITLE V.--_Concerning Forgers of Documents._
I. Concerning Those who Forge Royal Orders and Mandates 253
II. Concerning Those who Forge Documents, or Attempt
to Forge Them 254
III. Concerning Those who Forge, or Serve, False Orders in
the Name of the King, or a Judge 255
IV. Concerning Those who Falsify a Will against the Consent
of a Party while Living, or Disclose the Contents
of the Same 256
V. Concerning Those who Attempt to Forge, or Conceal,
the Will of a Person Already Deceased 256
VI. Where Anyone Assumes a Fictitious Name, or Adopts
a False Lineage or Relationship 256
VII. Concerning Documents Fraudulently Dated, Prior to
their Execution 257
VIII. Concerning Later Documents Fraudulently Executed 258
IX. Concerning those who Falsely Write, or Publish,
Decrees and Edicts of the King 259
TITLE VI.--_Concerning Counterfeiters of Metals._
I. Concerning the Torture of Slaves, in Order to Convict
their Masters of Counterfeiting Money; and the
Reward of Witnesses who have given Information
of the Same 261
II. Concerning Those who Debase _Solidi_, or Other Coins 261
III. Concerning Those who Debase Gold by a Mixture of
Other Metals 262
IV. Where Artificers of Metals are Found to have Abstracted
a Portion of what was Entrusted to Them 262
V. No One shall Refuse to Accept a Golden _Solidus_ of
Legal Weight 262
BOOK VIII.
CONCERNING ACTS OF VIOLENCE AND INJURIES.
TITLE I.--_Concerning Attacks, and Plunder of Property._
I. The Patron, or the Master, shall Alone be Held Guilty,
if, by his Orders, a Freeman or a Slave should
Commit any Unlawful Act 264
II. Where a Party in Possession is Expelled by Force 264
III. Where Many Persons Unite in Causing Bloodshed 264
IV. Where a Person is Shut up by Violence, Inside his Own
House, or Within his Gate 265
V. Property, while in the Possession of Another, shall
not be Seized, Except Under Legal Process 266
VI. Where a Person is Guilty of Asking Others to Commit
Depredations 267
VII. A House shall not be Entered in the Absence of the
Master, or while he is on a Public Expedition 267
VIII. Where the Slaves of a Person who is Absent on a
Public Expedition Commit Unlawful Acts 268
IX. Concerning Those who, while on an Expedition, Commit
Robbery or Other Depredations 268
X. He in whose Possession Stolen Property has been
Found, shall be Compelled to name his associates in
the Crime 269
XI. Concerning Those who are Guilty of Giving Directions
to Others for Purposes of Robbery 269
XII. Concerning Those who Rob, or Inflict Annoyance
upon Anyone, while he is on a Journey, or at Work
in the Country 269
XIII. Whether a Person Caught in the Act of Robbery may
be Killed 270
TITLE II.--_Concerning Arson and Incendiaries._
I. Concerning Those who set Fire to Houses either Within
or Without a City 271
II. Where Forests are set on Fire 272
III. Where a Conflagration Results from the Smouldering
Campfire of a Traveller 273
TITLE III.--_Concerning Injuries to Trees, Gardens, or
Growing Crops of any Description._
I. Concerning the Compensation for Cutting Down Trees 274
II. Where Anyone Destroys the Garden of Another 275
III. Where Injury, or Homicide, Results from the Cutting
Down of a Tree 275
IV. Where a Tree is Partially Cut Down, or is Injured
by Fire 276
V. Concerning the Cutting Down, Tearing up, or Burning
of Vines; and the Seizure of Growing Crops 276
VI. Where Fences are Cut Down, or Burned 277
VII. Where Fence Posts are Cut 277
VIII. Where Anyone is Caught with a Vehicle, in a Wood
Belonging to Another 278
IX. Concerning the Unreasonable Enclosure of Orchards,
Vineyards and Pastures 278
X. Where Animals are Voluntarily Loosed in Fields where
there are Crops, or in Vineyards 278
XI. Where Animals Damage Growing Crops 279
XII. Where an Enclosed Field is Ruined by Flocks 279
XIII. Where Fruits of any Kind are Destroyed by Animals 279
XIV. Where, while Anyone is Driving Cattle out of Cultivated
Fields, Another Person Rescues them, or Takes
Possession of them afterwards Secretly or by Force 280
XV. Concerning Animals Found in Vineyards, Fields of
Grain, or Meadows 281
XVI. Where Animals Depart from Fields of Growing Grain
Before they are Driven Out 282
XVII. Where Anyone Mutilates an Animal found in a Field
of Grain 282
TITLE IV.--_Concerning Injuries to Animals, and
Other Property._
I. Where a Horse, or any other Animal, which has been
Tied Up, is Removed, or Injured, in any Way,
Without the Consent of the Owner 284
II. Where any Animal which has been Loaned, is Used
against the Directions, or Will of the Owner,
or is Abused 285
III. Where the Mane or Tail of a Horse, or any Other
Animal, is cut off by Anyone 285
IV. Where Anyone Castrates an Animal Belonging to
Another 285
V. Where Anyone Produces an Abortion upon a Beast of
Burden Belonging to Another 286
VI. Where Anyone Produces an Abortion upon any kind of
Animal Belonging to Another 286
VII. Where Animals of any kind Injure One Another 286
VIII. Where a Person Kills an Animal Belonging to
Another, whether he has been Injured by said
Animal, or Not 286
IX. Where an Ox, Belonging to Another, is Used for
Labor, without the Consent of its Owner 287
X. Where Animals, of any kind, Belonging to Another,
are Overworked in the Threshing of Grain 287
XI. Where Cattle, which have done no Injury, are
Shut Up 287
XII. Where an Animal Causes Injury to Anyone 288
XIII. Where an Animal is Injured, or Killed, by a Blow 288
XIV. Where Cattle, Belonging to Another, with or without
the Knowledge of the Owner, are Mingled with the
Herd or Flock of the Latter 288
XV. Where Anything Intended to Frighten an Animal is
Fastened to it, and it should be either Injured,
or Killed, in Consequence 289
XVI. Where a Vicious Animal, while on the Premises of its
Owner, Kills Anyone 289
XVII. Where Anyone Rids himself of a Vicious Animal, or
Still Retains it in his Possession 290
XVIII. Where Anyone Teases an Animal and is Injured by it,
he Alone shall be Responsible for the Injury 290
XIX. Where a Dog that has been Irritated, whether the
Provocation was Wanton or not, is Proved to have
Injured, or Killed Anyone 291
XX. Concerning a Vicious Dog 291
XXI. Concerning Injuries to Clothing 291
XXII. Where a Trespasser Falls into a Trap set for Wild
Animals 292
XXIII. He who sets Snares or Traps for Wild Beasts, must
Inform his Neighbors of the Places where said
Snares are Set 292
XXIV. Concerning Injuries Resulting from the Obstruction
of Highways 293
XXV. Of the Space that is to be Preserved along Public
Highways 293
XXVI. Where the Animals of Persons Traversing Fields that
are not Enclosed, are Driven Away 294
XXVII. Animals Driven along the Highway Cannot be Excluded
from Open Pastures 295
XXVIII. He who has Land under Cultivation along the Bank
of a River, has a Right to Enclose the Same 295
XXIX. Concerning the Right to Enclose Streams 295
XXX. Concerning Those who Damage Mills, and Ponds 296
XXXI. Concerning Those who Steal Water from Streams
Belonging to Others 296
TITLE V.--_Concerning the Pasturage of Hogs, and
Concerning Strays._
I. Where Hogs are Pastured on Acorns, Either without
Authority, or under Contract 298
II. Where Hogs are Fed on Acorns on Land Belonging to
Several Persons 299
III. Where Hogs Turned on Land to be Fed on Acorns,
under Contract, are Taken away by Stealth, Before
the Tenth Part of said Hogs are Delivered 299
IV. Where Hogs are Found Wandering in Woodland 300
V. Where a Drove of Animals, of any Kind, Enter upon
the Pasture-land of Another Person 300
VI. Public Notice shall be given of Strays by him who
Finds them 301
VII. Whoever Finds any Strays shall take Proper Care of
the Same 301
VIII. No Stray Animal shall be Either Sheared, Branded,
or Appropriated by Anyone 301
TITLE VI.--_Concerning Bees, and the Damage they Cause._
I. Where a Person Finds Bees on his Property 303
II. Where Bees Cause any Damage 303
III. Concerning the Theft of Bees 303
BOOK IX.
CONCERNING FUGITIVES AND REFUGEES.
TITLE I.--_Concerning Fugitives, and Those who Conceal,
and Assist them in Their Flight._
I. Where a Freeman or a Slave is Found to have Concealed
a Fugitive 306
II. Where a Fugitive is Released from his Chains by any
Person 306
III. Within what Time a Fugitive Slave that has been
Found, shall be Produced Before the Judge 307
IV. Where Anyone, Ignorantly, Receives a Fugitive
Slave, and Cares for Him 307
V. Where Anyone Persuades the Slave of Another to
Flee, or Shows him Hospitality 308
VI. Where a Man, Unknown to be a Slave, is Received by
Another, and Remains with him Several Days 308
VII. Where a Slave, Knowingly, Directs a Fugitive Slave
in his Flight 309
VIII. Concerning the Reception of Fugitive Slaves; and
Whether a Master or a Slave may receive a Fugitive
Slave Belonging to Another 309
IX. Where a Fugitive Slave Comes to the House of any
Person, Notice of the Fact must be Given to the
Neighbors and Authorities of the District 311
X. Where a Slave that has been Sold into a Foreign
Country, Returns as a Fugitive, and is Sold a Second
Time, he shall be Entitled to his Freedom 311
XI. Where a Fugitive Slave Takes Refuge with Another
Person, an Investigation must be Made, to Ascertain
whether he was not Sent by his Master, in
Order that the Latter might Receive Compensation
from the Person who Received said Slave 312
XII. Where a Slave, Falsely Declaring that he is Free,
Serves Another for Hire 312
XIII. Where a Fugitive Slave is Found in the House of any
Person 313
XIV. Concerning the Reward for Arresting a Fugitive Slave 313
XV. Where a Fugitive Slave Falsely Declares that he is
Freeborn 314
XVI. Where a Fugitive Slave, Declaring that he is Freeborn,
Marries a Freeborn Woman 314
XVII. Concerning Property Acquired by Fugitive Slaves 315
XVIII. Concerning Those who Refuse to Restore Fugitive
Slaves to their Masters 315
XIX. Where a Freeman, or a Slave, Undertakes the Concealment
of Robbers 316
XX. A Judge must Surrender a Fugitive Slave, with all the
Property Found in his Possession, to his Master 316
XXI. Concerning Fugitive Slaves and those who Shelter Them 316
TITLE II.--_Concerning Those who Refuse to go to War,
and Deserters._
I. Where an Officer of the Army, Corrupted by a Bribe,
Permits a Soldier to Depart, or does not Compel
him to Leave his Home 320
II. Where Conscription Officers Appropriate the Property
of Those they Call to Arms 321
III. Where an Officer of the Army Abandons the War, and
Returns Home, or Permits Others to do so 321
IV. Where an Officer of the Army, Deserting the Service,
Returns Home, or Compels Others to do so 322
V. Where a Conscription Officer Receives a Bribe to Permit
Soldiers who are not Ill, to Remain at Home 323
VI. Concerning those who Appropriate Army Rations, or
are Guilty of Fraud in the Distribution of the Same 323
VII. What Reward he who Rescues Slaves, or Property, from
the Possession of the Enemy, shall be Entitled to 324
VIII. What Conduct shall be Pursued when Public Scandal
Arises within the Bounds of Spain 324
IX. Concerning Those who Fail to Enlist at the Appointed
Time or Place, or Desert; and What Proportion of
the Slaves Belonging to any Person shall join the
Army 327
TITLE III.--_Concerning Those who Seek Sanctuary in a Church._
I. No One, Claiming the Privilege of Sanctuary in a
Church, shall be Taken from Thence by Force,
Unless he Defends himself with Arms 331
II. Where a Person Seeks Sanctuary in a Church, and is
Killed, while Defending himself with Arms 331
III. Concerning the Penalty for Removing a Man from a
Church by Force 331
IV. A Debtor, or a Criminal, Cannot be Forcibly Removed
from a Church, and must Pay such Debts, or Penalties,
as are Due 332
BOOK X.
CONCERNING PARTITION, LIMITATION AND BOUNDARIES.
TITLE I.--_Concerning Partition, and Lands Conveyed by Contract._
I. A Partition Once Made, shall Remain Forever in Force 334
II. No Partition Made Between Brothers shall be Revoked,
Even if it was not Made in Writing but Only
in the Presence of a Competent Witness 334
III. Where a Partition is Made Among Many Persons by
the Majority and those Entitled to the Larger Share,
it shall not be Changed by any Act of the Minority 334
IV. One Heir shall have the Right to Act for all the
Others, either as Plaintiff or Defendant 335
V. Where Anyone Violates a Contract Establishing a
Partition, and Seizes a Portion of the Property 335
VI. Where an Heir Plants a Vineyard, or Erects a House,
on Land Belonging to his Co-Heirs 336
VII. Where one Person Plants a Vineyard on the Land of
Another, to which he has no Title 336
VIII. Concerning the Division of Lands Made Between
Goths and Romans 337
IX. Concerning Forests Still Undivided Among Goths and
Romans 337
X. Whatever Acts a Slave may Perform, without the
Order of his Master, shall be Void, except when
Otherwise Provided by Law 337
XI. Whoever Enters upon Land under a Lease, must
Comply with his Contract 337
XII. Where Lands are Leased, by a written Contract, for a
Term of Years 338
XIII. Where he who Rents Land under Contract, Cultivates
a Greater Area than he has a Right to do, under the
Conditions of the Same 338
XIV. Where a Dispute Arises Between Landlord and Tenant,
Concerning Arable Lands, or Forests, which are
Leased 339
XV. Both Tenants must Pay the Rent for Land which has
been Sublet 339
XVI. Where Goths have Appropriated any of the Third
Part of Land Belonging to Romans, they shall
Restore the Entire Amount to the Romans, under
Order of Court 339
XVII. Concerning the Partition of Property Among the
Blood-Relatives of Slaves, and the Distribution of
their Personal Estates 340
XVIII. All Personal Property shall be Classed under One Title 341
XIX. Where a Contract is not Complied With according to
its Terms 341
TITLE II.--_Concerning the Limitations of Fifty and Thirty Years._
I. After the Lapse of Fifty Years, Neither Goths nor
Romans can Assert a Claim to Property 343
II. No Fugitive Slave shall be Again Reduced to Servitude,
after the Lapse of Fifty Years 343
III. No Suit at Law shall be Brought Thirty Years After
the Cause of Action has Arisen 343
IV. The Limitation of Thirty Years shall Run in all Cases
Excepting those where Slaves of the Crown are
Concerned 344
V. Concerning Claims made within Thirty Years 344
VI. The Limitation of Thirty Years shall not Run while
Persons are Exiled 346
VII. Within what Time Slaves Belonging to the Crown can
Again be Reduced to Slavery 347
TITLE III.--_Concerning Boundaries and Landmarks._
I. How Boundaries and Landmarks shall be Preserved 348
II. Concerning the Destruction and Removal of Landmarks 348
III. What is to be Done when a Dispute Arises Concerning
Boundaries 348
IV. Where One Person makes a Claim to Land Included
within the Boundaries of Another 349
V. Where any Change was made in the Boundaries of Land
During the Time of the Romans, no Claim Based upon
Other Boundaries shall Prevail 350
BOOK XI.
CONCERNING THE SICK AND THE DEAD, AND MERCHANTS
WHO COME FROM BEYOND SEAS.
TITLE I.--_Concerning Physicians and Sick Persons._
I. No Physician shall Presume to Bleed a Woman, in the
Absence of her Relatives 353
II. No Physician shall Visit Persons Confined in Prison 354
III. Where a Physician Treats Disease under a Contract 354
IV. Where a Sick Person Dies, while a Physician is Treating
him under a Contract 355
V. Where a Physician Removes a Cataract from the Eye 355
VI. Where a Freeman or a Slave Dies from Being Bled 355
VII. Concerning the Compensation to be Received for the
Instruction of a Student in Medicine 355
VIII. No Physician shall be Imprisoned without a Hearing 355
TITLE II.--_Concerning Those who Disturb Sepulchres._
I. Concerning Persons who Deface or Injure Tombs 356
II. Where a Coffin is Removed from a Grave 356
TITLE III.--_Concerning Merchants who Come from Beyond Seas._
I. Where Foreign Merchants are Detected Selling Stolen
Property 357
II. Foreign Merchants shall be Judged by their own
Magistrates, and According to their own Laws 357
III. Where a Foreign Merchant Carries Away with him,
from our Kingdom, a Person whom he has Hired 358
IV. Where a Foreign Merchant takes Away a Slave for
Purposes of Commerce 358
BOOK XII.
CONCERNING THE PREVENTION OF OFFICIAL OPPRESSION,
AND THE THOROUGH EXTINCTION OF
HERETICAL SECTS.
TITLE I.--_Concerning the Exercise of Moderation in
Judicial Decisions, and the Avoiding of Oppression
by Those Invested with Authority._
I. Concerning the Admonition of the King, by which
Judges are Ordered to Display Moderation in the
Administration of Justice 359
II. No Official, Invested with Power Over the People and
Supervision Over their Acts, shall Subject them to
Unnecessary Expense, or Other Impositions 360
TITLE II.--_Concerning the Eradication of the Errors
of all Heretics and Jews._
I. Laws Having Been Given to True Believers, it is Now
Necessary to Place Restraints upon Infidels 363
II. Concerning the Renunciation of the Errors of all
Heresies 364
III. Concerning the Laws Promulgated on Account of the
Wickedness of the Jews 365
IV. Concerning the Extirpation of the Errors of the Jews
in General 366
V. Jews shall not Celebrate the Passover According to
their Custom 367
VI. Jews shall not Contract Marriage According to their
Custom 367
VII. Jews shall not Perform the Rite of Circumcision 367
VIII. Jews shall not Divide their Food into Clean and
Unclean, According to their Custom 367
IX. No Jew shall Subject a Christian to Torture 368
X. No Jew shall Testify Against a Christian; and Under
what Circumstances the Descendants of Jews may
Testify 368
XI. No Jew shall Circumcise a Christian Slave 369
XII. Concerning the Penalties to be Inflicted for Offences
Committed by Jews 369
XIII. Concerning Christian Slaves who are Known to have
been Sold or Liberated by Jews 369
XIV. Under no Circumstances shall Christian Slaves Attach
themselves to Jews, or be Admitted into their
Sect 371
XV. All Christians are Forbidden to Defend or Protect a
Jew by Either Force or Favor 374
XVI. Memorial of the Jews Presented to the King 375
XVII. Concerning Judaizing Christians 376
XVIII. Concerning the Perfidy of the Jews 377
TITLE III.--_Concerning New Laws against the Jews, in
which Old Ones are Confirmed, and New Ones are Added._
I. Concerning Old Laws Enacted Against the Transgressions
of the Jews, and the Confirmation of the Same 382
II. Concerning Blasphemers Against the Holy Trinity 384
III. Jews shall not Absent themselves, or Remove their
Children or Slaves, to Avoid the Blessing of
Baptism 385
IV. Jews shall not Celebrate the Passover According to
their Custom, or Practice Circumcision, or Induce
any Christian to Renounce the Church of Christ 385
V. Jews shall not Presume to Keep the Sabbath, or
Celebrate Festival Days, According to their Ritual 386
VI. Every Jew shall Cease from Labor on Sunday, and
on all Appointed Holidays 387
VII. Jews shall not make any Distinction in their Food,
According to their Custom 388
VIII. A Jew shall not Marry a Person Nearly Related to
him by Blood, or Contract Marriage without the
Benediction of a Priest 388
IX. Jews who Insult our Religion, while Attempting to
Defend their own Sect, shall not Betake
themselves Elsewhere; nor shall Anyone Shelter
them while Fugitives 389
X. No Christian shall Accept a Gift from a Jew, to the
Detriment of the Christian Faith 390
XI. Jews shall not Dare to Read Such Books as the Christian
Faith Rejects 391
XII. Christian Slaves shall not Serve, or Associate with,
Jews 392
XIII. Where a Jew Declares that he is a Christian, and, for
this Reason, does not Wish to Dispose of a Christian
Slave 393
XIV. The Confession of Jews; and, In What way Each One
of Them, who is Converted, must Write Down the
Proof of his Conversion 395
XV. Conditions under which Jews must Make Oath, when,
having been Converted, they give in their
Confession of Faith 397
XVI. Concerning the Christian Slaves of Jews, who have not
Proclaimed themselves Christians, and those who
Expose Them 401
XVII. No Jew, under any Authority whatever, shall Dare to
Oppress, Punish, or Imprison a Christian, Except
by Order of the King 401
XVIII. If Slaves of Jews, not yet Converted, should Claim
the Grace of Christ, they shall be Liberated 402
XIX. Jews shall not Rule Christians under the Authority of
Mayors of Towns, or of Superintendents of Estates;
and Concerning the Penalties to be Imposed upon
Such as Appoint them to Office 402
XX. Where a Jew comes from Another Country into any of
the Provinces of Our Kingdom, he must, at once,
Present himself before a Bishop, a Priest, or a
Judge; and What shall be Done under the
Circumstances 403
XXI. How Assemblies of Jews shall Visit the Bishop on
Appointed Days 404
XXII. Where Anyone has a Jew in his Service, and a Priest
Demands him, the Master shall not have a Right to
Retain said Jew 405
XXIII. All Restraint of, and Control over, the Jews shall be
Vested in the Priesthood 405
XXIV. Concerning the Penalties to be Imposed upon Priests
and Judges who Neglect to Enforce the Laws against
the Jews 406
XXV. No Judge shall Presume to Investigate the Offences
of the Jews without the Knowledge of an
Ecclesiastic 407
XXVI. Bishops shall be Immune from Punishment when their
Priests do not Inform them of such Things as
should be Corrected 407
XXVII. Concerning the Mercy to be Shown by Princes towards
Those who have been Truly Converted to the
Christian Faith 408
XXVIII. Bishops shall Give to all Jews a Copy of this Book,
which has been Published for the Purpose of
Correcting their Errors; and their Confessions
and a Record of their Conversion shall be
Deposited among the Archives of the Church 408
LAWS OF THE JUDGES.
BOOK I.
CONCERNING LEGAL AGENCIES.
TITLE I. THE LAWMAKER.
=I.= _What the Method of Making Laws Should Be._
=II.= _How the Lawmaker Should Act._
=III.= _What Should be Required of the Lawmaker._
=IV.= _What the Conduct of the Lawmaker Should Be in his
Daily Life._
=V.= _How the Lawmaker Should Impart Advice._
=VI.= _What Manner of Speech the Lawmaker Should Use._
=VII.= _How the Lawmaker Should Act in Rendering Judgment._
=VIII.= _How the Lawmaker Should Comport Himself in Public and
Private Affairs._
=IX.= _What Instruction it is Fitting that the Lawmaker
Should Give._
=I. What the Method of Making Laws Should Be.=
We, whose duty it is to afford suitable assistance in the formation
of the laws, should, in the execution of this undertaking, improve
upon the methods of the ancients, disclosing as well the excellence
of the law to be framed, as the skill of its artificer. The proof
of this art will be the more plainly evident, if it seems to draw
its conclusions not from inference and imitation but from truth. Nor
should it stamp the force of argument with the subtlety of syllogism,
but it should, with moderation, and by the use of pure and honorable
precepts, determine the provisions of the law. And, indeed, reason
plainly demands that the work be performed in this manner. For, when
the master holds in his hand the finished product, in vain is sought
the reason for its having been impressed with that particular form.
On subjects that are obscure, reason eagerly seeks to be informed by
examination; in matters, however, that are well known and established,
action alone is required. Therefore, when the matter in question is not
clear because its form is unfamiliar, investigation is desirable; but
it is otherwise in affairs known to all men, where not speculation,
but performance, becomes essential, As we are more concerned with
morals than with eloquence, it is not our province to introduce the
personality of the orator, but to define the rights of the governor.
=II. How the Lawmaker Should Act.=
The maker of laws should not practise disputation, but should
administer justice. Nor is it fitting that he should appear to have
framed the law by contention, but in an orderly manner. For the
transaction of public affairs does not demand, as a reward of his
labors, the clamor of theatrical applause, but the law destined for the
salvation of the people.
=III. What Should be Required of the Lawmaker.=
First, it should be required that he make diligent inquiry as to the
soundness of his opinions. Then, it should be evident that he has acted
not for private gain but for the benefit of the people; so that it may
conclusively appear that the law has not been made for any private or
personal advantage, but for the protection and profit of the whole body
of citizens.
=IV. What the Conduct of the Lawmaker Should Be in his Daily Life.=
The framer of laws and the dispenser of justice should prefer morals
to eloquence, that his speech may be characterized rather by virtuous
sentiments, than by elegance of expression. He should be more eminent
for deeds than for words; and should discharge his duties rather with
alacrity than with reluctance, and not, as it were, under compulsion.[1]
=V. How the Lawmaker Should Impart Advice.=
He should be mindful of his duty only to God and to himself; be liberal
of counsel to persons of high and low degree, and easy of access to
the citizens and common people; so that, as the guardian of the public
safety, exercising the government by universal consent, he may not, for
personal motives, abuse the privileges of his judicial office.
=VI. What Manner of Speech the Lawmaker Should Use.=
He should be energetic and clear of speech; certain in opinion; ready
in weighing evidence; so that whatever proceeds from the source of the
law may at once impress all hearers that it is characterized by neither
doubt nor perplexity.
=VII. How the Lawmaker Should Act in Rendering Judgment.=
The Judge should be quick of perception; firm of purpose; clear in
judgment; lenient in the infliction of penalties; assiduous in the
practice of mercy; expeditious in the vindication of the innocent;
clement in his treatment of criminals; careful of the rights of the
stranger; gentle toward his countrymen. He should be no respecter of
persons, and should avoid all appearance of partiality.
=VIII. How the Lawmaker Should Comport Himself in Private and Public
Affairs.=
All public matters he should approach with patriotism and reverence;
those concerning private individuals and domestic controversies he
should determine according to his authority and power; so that the
community may look up to him as a father, and the lower orders of the
people may regard him as a master and a lord.
He should be assiduous in the performance of his duties so that he may
be feared by the commonalty to such a degree that none shall hesitate
to obey him; and be so just that all would willingly sacrifice their
lives in his service, from their attachment to his person and to his
office.
=IX. What Instruction it is Fitting that the Lawmaker Should Give.=
Then, also, he should bear in mind that the glory and the majesty of
the people consist in the proper interpretation of the laws, and in the
manner of their administration. For, as the entire safety of the public
depends upon the preservation of the law, he should attempt to amend
the statutes of the country rather than the manners of the populace;
and remember that there are some who, in controversies, apply the laws
according to their will, and in pursuance of private advantage, to such
an extent that what should be law to the public is to them private
dishonor; so that, by perversion of the law, acts which are illegal
are often perpetrated, which should obviously be abolished through the
power of the law itself.
TITLE II. THE LAW.
=I.= _What the Lawmaker Should Observe in Framing the Laws._
=II.= _What the Law Is._
=III.= _What the Law Does._
=IV.= _What the Law Should Be._
=V.= _Why the Law is Made._
=VI.= _How the Law Should Triumph over Enemies._
=I. What the Lawmaker Should Observe in Framing the Laws.=
In all legislation the law should be fully and explicitly set forth,
that perfection, and not partiality, may be secured. For, in the
formation of the laws, not the sophisms of argument, but the virtue
of justice should ever prevail. And here is required not what may be
prompted by controversy, but what energy and vigor demand; for the
violation of morals is not to be coerced by the forms of speech, but
restrained by the moderation of virtue.
=II. What the Law Is.=
The law is the rival of divinity; the oracle of religion; the source of
instruction; the artificer of right; the guardian and promoter of good
morals; the rudder of the state; the messenger of justice; the mistress
of life; the soul of the body politic.
=III. What the Law Does.=
The law rules every order of the state, and every condition of man;
it governs wives and husbands; youth and age; the learned and the
ignorant; the polished and the rude. It aims to provide the highest
degree of safety for both prince and people, and, in renown and
excellence, it is as conspicuous as the noon-day sun.
=IV. What the Law Should Be.=
The law should be plain, and not lead any citizen to commit error or
fraud. It should be suitable to the place and the time, according to
the character and custom of the state; prescribing justice and equity;
consistent, honorable, worthy, useful, and necessary; and it should
be carefully noted whether its provisions are framed rather for the
convenience, than for the injury, of the public; so that it may be
determined whether it sufficiently provides for the administration of
justice; whether or not it appears to be contrary to religion, and
whether it defends the right, and may be observed without detriment to
any one.
=V. Why the Law is Made.=
Laws are made for these reasons: that human wickedness may be
restrained through fear of their execution; that the lives of innocent
men may be safe among criminals; and that the temptation to commit
wrong may be restrained by the fear of punishment.
=VI. How the Law Should Triumph over Enemies.=
Domestic peace having been once established and the plague of
contention having been entirely removed from prince, citizen, and the
populace, expeditions then may be made safely against the enemy and
he may be attacked confidently and vigorously, in the certain hope of
victory; when nothing is to be anticipated or feared from dissensions
at home. The entire body of the people being prosperous and secure,
through the influence of peace and order, they can set forth boldly
against the enemy and become invincible, where salutary arts are
aided by just laws. For men are better armed with equity than with
weapons; and the prince should rather employ justice against an enemy
than the soldier his javelin; and the success of the prince will be
more conspicuous when a reputation for justice accompanies him, and
soldiers who are well governed at home will be all the more formidable
to a foe. It is a matter of common experience, that justice, which has
protected the citizen, overwhelms the enemy; and that those prevail in
foreign contests who enjoy domestic peace; and while the moderation of
the prince insures temperance in the enforcement of the law, so the
united support of the citizens promotes victory over the enemy. For
the administration of the law is regulated by the disposition and
character of the king; from the administration of the law proceeds the
institution of morals; from the institution of morals, the concord of
the citizens; from the concord of the citizens, the triumph over the
enemy. So a good prince ruling well his kingdom, and making foreign
conquests, maintaining peace at home, and overwhelming his foreign
adversaries, is famed both as the ruler of his state and a victor
over his enemies, and shall have for the future eternal renown; after
terrestrial wealth, a celestial kingdom; after the diadem and the
purple, a crown of glory; nor shall he then cease to be king; for when
he relinquished his earthly kingdom, and conquered a celestial one, he
did not diminish, but rather increased his glory.